Armed Forces (Court Martial) (Amendment) Rules 2022

Baroness Smith of Newnham Excerpts

Tuesday 8th November 2022 Lords Chamber

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, this statutory instrument consists of changes to the rules applying to the court martial contained in Schedule 1 to the Armed Forces Act 2021. Three of the four changes implement recommendations from the review of the service justice system by His Honour Shaun Lyons.

The rule changes state that six-member boards are required if the offence is a Schedule 2 offence—serious offences, such as grievous bodily harm, which must always be referred to service police for investigation—or if the offence carries a maximum penalty of more than two years’ imprisonment. They introduce Rule 30 to determine when an additional member can be appointed to a three-member board. This is to address the concern that three-member boards hearing cases lasting several days may be vulnerable to an unexpected loss of a member, which would result in the board not being quorate or validly constituted. The changes also introduce Rule 30A to allow a direction to be made to allow proceedings to continue if a board is reduced from four to three or six to five members. They also extend those ranks applicable to sit on a court martial board to include OR-7 personnel; these are senior NCOs such as chief petty officers or staff sergeants. The rules introduce other minor amendments to the court martial rules in consequence of these changes.

To explain further, the first rule change implements His Honour Shaun Lyons’s recommendation that a six-member board should be required if the offence is a Schedule 2 offence or carries a maximum penalty of more than two years’ imprisonment. He found widespread agreement that the current five-member boards, which try Schedule 2 offences and offences carrying a maximum term of over seven years’ imprisonment, should increase in size to six and reach qualified majority verdicts, rather than simple majority verdicts, in which at least five of the six members have agreed. He also recommended that they try Schedule 2 offences and offences carrying a maximum term of over two rather than seven years’ imprisonment. He recommended that smaller boards, which will continue to consist of three or four members, should try all other cases and deal with sentencing in all cases where the defendants have pleaded guilty, as they do now.

We accepted this recommendation, which will allow the three-member boards to focus on the great majority of service disciplinary offences contained in Sections 1 to 41 of the Armed Forces Act 2006, and the less serious criminal offences which would normally be heard in the magistrates’ court in the civilian criminal justice system. Six-member boards will deal with the relatively small number of disciplinary offences carrying a sentence of over two years’ imprisonment, such as assisting the enemy or mutiny, as well as criminal conduct that would normally be tried in the Crown Court. We do not anticipate that lowering the threshold for when a six-member board is required—when the offence attracts a punishment of more than two years—will place an additional resourcing burden on the single services, with the existing pools of personnel provided for court martial services sufficient to meet the new requirement. However, we will monitor the situation for the first 12 months after introduction, in the same way as the other changes we are introducing to how the court martial operates, and consider whether any adjustment to this approach might be required.

The second rule change, to introduce a new Rule 30, has its background in the “pingdemic”—fondly remembered by many of us—which occurred during the Covid pandemic and which highlighted the concern that three-member boards hearing cases lasting several days can be vulnerable to the unexpected loss of one member. To deal with this, the Armed Forces Act 2021 gave judge advocates the power to add a fourth member to a three-member board to make it more viable and anticipate the board being affected by the loss of a member. The new Rule 30 details when this power can be used. Judge advocates have a wide discretion to appoint an additional member whenever they feel it to be necessary in view of the expected length or location of the proceedings. This approach is closely based on the existing Rule 30, which currently allows up to two additional members to be appointed in cases expected to last more than 10 days, or five in the case of trials being heard outside the United Kingdom and Germany.

The third rule change, new Rule 30A, follows on from the second and implements another of His Honour Shaun Lyons’s recommendations: that there must be a mechanism to cope with the death, sickness or other absence of a member occurring during a trial, which would reduce a six-member board to five members. This would reflect Section 16 of the Juries Act 1974, under which the default position is that a Crown Court trial continues despite the loss of up to three jurors, but the judge can instead choose to discharge the jury. New Rule 30A gives judge advocates the power to direct that the proceedings with a four or six-member board should continue

“in the interests of justice”,

despite the loss of a member, and that this direction may be made at any point after all the members have been sworn in.

The final rule change relates to changes made to the Armed Forces Act 2006 by the Armed Forces Act 2021 allowing personnel at other ranks—OR7—to sit as members of the court martial. These are senior non-commissioned officers, such as chief petty officers, staff or colour sergeants, flight sergeants and chief technicians. This was another recommendation made by His Honour Shaun Lyons. Currently, only officers and warrant officers may be members of a court martial and, unlike a jury in the Crown Court, the members assist the judge advocate in sentencing. Sentencing within the service justice system has a number of purposes: not least punishment, deterrence and the maintenance of discipline. OR7 ranks have the experience and an understanding of command and rank, and are well placed to be involved in the sentencing exercise, something that civilian juries do not participate in.

Extending eligibility for board membership to OR7s will also mean that the single services have a wider pool of experienced personnel to draw on. Your Lordships will recall from our debate on 18 October that this measure will also help with the new rule to increase the representation of women on court martial boards. It may also reduce the burden on officers required on boards where the defendant is of another rank. The existing rule about all members being senior to the defendant is unchanged, meaning that OR7 personnel will be able to serve on boards hearing cases only where the defendant is of the same or a lower rank.

The new rule will allow for one OR7 on a six-member board. This means that on any six-member board, there can be no more than two warrant officers, or one warrant officer and one OR7. For three-member boards, there can be either one warrant officer or one OR7. We believe that this balance of rank will ensure that the board has a broad range of experience and perspective on which to draw during their duties.

As I said, three of these four rule changes were recommended to the department by His Honour Shaun Lyons, a highly respected retired senior Crown Court judge, and the other rule change reflects a sensible business continuity measure for three-member boards. As such, I trust that noble Lords will feel able to support the approach we have taken with this statutory instrument. I beg to move.

[Baroness Smith of Newnham (LD)]

My Lords, again, from these Benches, this statutory instrument seems wholly appropriate. In particular, bringing service justice closer to the civilian system and the parallels with the Crown Court seem wholly welcome. Obviously, there are reasons why courts martial can be necessary, and some degrees of detail will inevitably be different from civilian courts. However, the more we can have something that looks very much as though it brings parity and a clear sense of justice is hugely important.

I wanted to ask about bringing in senior NCOs. The Minister mentioned the statutory instrument of a couple of weeks ago, when she talked about bringing women in as lay members. To what extent is there a danger that women NCOs could find themselves brought into more courts martial than others? Could that be an undue pressure?

Other than that, there is nothing to do other than to look forward to the review of this measure in a year and, if we remember, to look at it again in 2026, when we have the quinquennial review.