Chapter 5 – Comparative Study
5.1 Introduction
The CMCRT’s Terms of Reference explicitly authorized the team to conduct an international comparative study of how other like-minded states operate their military justice systems, and in particular their court martial (or equivalent) systems. This study was conducted in order to expose the CMCRT to a full range of military justice considerations, structures, and practices.
This chapter describes the conduct of the CMCRT’s comparative study, along with the CMCRT’s observations and assessments of the relevant benefits and disadvantages of various facets of the specific systems that were studied.
To achieve the goal of the comparative study, the CMCRT determined that it would be necessary to learn about the systems of nations belonging to a variety of legal traditions. Consequently, the CMCRT chose to study the systems of several countries of the Anglo-American tradition of military justice, to which Canada belongs (i.e.: the United States; Ireland; the United Kingdom; Australia; and, New Zealand), and countries with the Civil Law tradition of military justice whose operational focus mirrors that of Canada (Norway; Denmark; Finland; France and the Netherlands). Countries with Civil Law tradition tend to have an inquisitorial system where the court is actively involved in investigating the facts of the case, while countries of Anglo-American tradition tend to have an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. The court martial system of each country has been heavily influenced by its own legal tradition.
The CMCRT conducted independent research into the military justice systems of each of the above nations, then carried out in-person technical visits consisting of meetings with resident experts, system actors, and other stakeholders. These technical visits allowed the CMCRT to validate its understanding of how each nation’s court martial system functioned, and also provided the necessary context to assess how particular facets of those national systems might be used as comparators to Canada’s present system and to develop options to enhance the effectiveness, efficiency or legitimacy of Canada’s court martial system.
Although the above-listed technical visits were the primary focus of the CMCRT’s foreign study and consultation plan, the team also took advantage when opportunities presented themselves to have in-person discussions abroad with other military justice stakeholders in Singapore and Israel. These more limited consultations enhanced the CMCRT’s knowledge of various trends and practices in court martial systems from around the world.
Each court martial system1 studied by the CMCRT is discussed below, in chronological order based upon the dates during which the visits were conducted. Each section commences with a short narrative that describes the technical visit, including dates and particular individuals or offices who were consulted, along with important contextual information about each state’s armed forces (e.g.: force size; types of missions; and nature of any extra-territorial deployments). This narrative is followed by a general description of each nation’s court martial system that touches upon each of the enumerated areas for study that were listed at para 4 of the CMCRT’s Terms of Reference.
Each section concludes with the CMCRT’s own observations and assessments of relevant features of the foreign system, and how these features may or may not be useful in its analysis.
All the countries the CMCRT visited have some form of a commander-driven and commander-administered summary trial or summary hearing system for dealing with minor and non-criminal service misconduct by military personnel, separately and apart from any system for dealing with more serious and criminal-like misconduct by military personnel.
5.2.1.1 Technical Visit
On 27 June 2016, two members of the CMCRT conducted an in-person technical visit to the United States. There, they met with the Chief of the Criminal Law Division (US Army Judge Advocate General’s Corps2), the Staff Judge Advocate of the United States Marine Corps, US Navy and Marine Corps legal officers involved in military justice policy development, the Director of the US Air Force Judiciary, and the Chief of the US Air Force Military Justice Division.
The American military total around 1,429,995 regular force members, with about 818,000 additional members of the reserve force. The United States regularly commits its armed forces to international operations.
5.2.1.2 The American Court Martial System
5.2.1.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
There are three types of courts-martial in the United States: summary, special, and general.
A summary court-martial is a trial before a single officer, who is not a judge and who is not trained as lawyer. A summary court-martial does not have jurisdiction to try officers, and may only try an enlisted accused person if the person consents to be so tried. If consent is not provided, then charges may be disposed of through other means, including by a special or general court-martial. Powers of punishment are limited at a summary court-martial.
A special court-martial consists of a military judge and at least three officers sitting as a panel or jury. The panel can, at the request of an enlisted accused person, consist of at least one-third enlisted personnel. An accused person can also request a trial by a judge presiding alone.
A general court-martial consists of a military judge and at least five officers sitting as a panel of court-martial members. An enlisted accused person may request a court composed of at least one-third enlisted personnel. An accused person can also request a trial by a judge presiding alone. A general court-martial is the only tribunal that can imposed a sentence to death. Before a case goes to trial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice (similar to a preliminary inquiry in Canadian civilian criminal courts) must be conducted, unless waived by the accused person.
Military judges who preside at special and general court-martial are lawyers drawn from the respective service’s Judge Advocate General organization, who are posted into and out of judicial positions over the course of their careers. In the case of US Army and US Coast Guard judges, the postings are generally for fixed terms of three years. In the case of judges in the other services, judicial postings do not have any fixed duration, and are controlled like any other postings, at the discretion of leaders within the service and JAG leadership.
Generally speaking, a decision of a court-martial must be reviewed by the (operational, non-legal) officer in the military chain of command who convened the court-martial. This officer would have the power to overturn or change the findings and sentence. Up until recently, this was the case for all courts-martial. However, by virtue of amendments to article 60 of the Uniform Code of Military Justice (UCMJ) that were contained in the National Defence Authorization Act for Fiscal Year 2014, changes to the post-trial review powers of a convening authority have taken effect. As a result of these changes, a convening authority can no longer modify a finding unless the finding relates to an offence with a maximum punishment of two years (or less) imprisonment, and unless the actual punishment imposed in the case was less than six months imprisonment. Certain offences, including sexual assault offences, will never meet these criteria because of the maximum punishment associated with the offences.
Within the American court martial system, article 37 of the UCMJ prohibits commanders from exerting unlawful command influence (UCI) – for instance, by criticizing panel members for the decisions that they reached during a court-martial, or by discouraging witnesses from testifying on behalf of an accused person – over court martial system actors. This provision in the law has been interpreted robustly by the military judiciary. Where instances of UCI are identified on appeal, appellate courts have ordered new trials, and in cases where this would not be a sufficient remedy, have directed verdicts of acquittal.
5.2.1.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
In each service’s JAG organization – and there are some subtle differences in how these are structured – there are generally a number of “Trial Counsel” or prosecution positions. These positions are held by JAG officers of different ranks, who are ultimately under the command of senior leaders in the operational chain of command. Ultimately, this command structure reflects the concentration of initial prosecutorial power that is held by the commander, who – as a convening authority for courts-martial – effectively makes the decision about whether to proceed with a prosecution at court-martial. The conduct of a particular prosecution is then assumed by prosecutorial Trial Counsel.
Postings into Trial Counsel positions are generally limited to 18-24 months in duration. An individual officer may complete several postings within either a Trial Counsel or “Defence Counsel” military justice litigation position over the course of his or her career.
Trial Counsel can obtain different litigation skill identifiers during their careers: “basic” is achieved after completing three contested trials; “senior” is achieved after completing seven contested trials; “expert” is achieved after completing twelve contested trials; and, “master” is achieved after completing eighteen contested trials. Very few JAG officers attain the status of “master.”
By one account, it has been assessed that JAG officers who occupy military justice litigation positions, including Trial Counsel positions, have participated in an average of seven contested trials, and have spent an average of 25 months in litigation positions, over the course of their careers.
5.2.1.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
JAG officers can be posted into and out of “Defence Counsel” positions in much the same way as for “Trial Counsel” positions. The provision of defence counsel services takes place within a system that is essentially the same as the system for prosecution services. In any case where military defence counsel are provided to an accused person, then these services are provided completely at public expense, with no contribution from the accused person, and no-predetermined cap or tariff on the extent of services that can be provided.
An accused person at a summary court-martial is not entitled to representation by military defence counsel as of right, although such representation can be provided. An accused person who wishes to be represented by civilian defence counsel can choose to hire and pay for such counsel at his/her own expense.
An accused before a special or general court-martial is entitled to free legal representation by military defense counsel, and can also retain civilian counsel at his or her own expense.
5.2.1.2.4 The substantive body of service offences
The Uniform Code of Military Justice creates a series of uniquely military offences, such as desertion, disrespect toward a superior officer, and malingering. It also provides for military jurisdiction over ordinary civil offences, regardless of the service connection. The service status of the accused as someone who is subject to military law is sufficient to ground a court-martial’s jurisdiction. 3
5.2.1.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The sentences available to courts-martial are as follows: reprimand, forfeiture of pay and allowances, fine, restriction to specified (geographical) limits, hard labour without confinement, confinement, punitive separation (i.e.: various degrees of dismissal from the armed forces), and death. Many of these punishments are unique to the court-martial system, and have no equivalent in civilian criminal law.
5.2.1.2.6 The laws of evidence that apply at trials in respect of service offences
There are distinct rules of evidence applicable at courts-martial, called the Military Rules of Evidence, set out at Part III of the Manual for Courts-Martial, a publication issued by the President with the force of a regulation. This Manual is updated regularly (for instance, updated versions were published in 2012 and 2016). The Military Rules of Evidence span approximately 47 pages, and generally reflect the common law of evidence in the United States, but include a number of uniquely military rules that are distinct from the rules of evidence that would apply in local civilian criminal courts across the United States.
5.2.1.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
After any post-trial action by a convening authority in respect of a decision at a court-martial, the decision can be appealed to the relevant service’s Court of Criminal Appeals. The judges of these courts are also drawn from the relevant service’s JAG organization, and hear appeals in panels of three judges.
A decision can be taken on further appeal to the unified Court of Appeal for the Armed Forces (CAAF). The judges of the CAAF are civilian, nominated by the President, confirmed by Congress with secure tenure for a single 15 year term.
A final appeal can be available in limited circumstances to the United States Supreme Court, but the availability of such an appeal is less broad than it would be in the case of a criminal matter that is dealt with entirely in the civilian criminal justice system.
5.2.1.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
In 2005, the US Department of Defence created a specialized Sexual Assault Prevention Office (SAPRO), which now serves as the Department’s single point of authority for sexual assault policy and provides oversight to ensure that each of the service’s programs complies with departmental policy.
Additionally, in December 2014, as part of legislative changes contained within the annual National Defence Authorization Act, a new and more robust “Special Victims Counsel” (SVC) program was implemented. Victims became entitled to participate in certain ways at courts-martial through SVC, which is provided through the service JAG organizations at public expense.
5.2.1.3 Observations on the American Court Martial System
The CMCRT notes that the American court martial system remains very command-focused. The system requires commanders to make decisions about whether to prosecute, and permits commanders under many circumstances to modify decisions of a court-martial in respect of both findings and sentences after a trial has been completed. The CMCRT also notes that military judges within the system enjoy periods of tenure that are somewhat less secure than the periods of tenure of enjoyed by judges (including military judges) in Canada – because the periods are of fixed but shorter durations, or are of variable durations.
These aspects of the American court martial system would not be constitutional in Canada based on the Supreme Court of Canada’s jurisprudence regarding judicial independence. The American constitutional framework is different from the Canadian framework, and has not precluded the type of command involvement within the American court martial system that is described above.
The CMCRT notes that various aspects of the American court martial system have been come under Congressional and other executive scrutiny in recent years. For instance, in accordance with a provision of the National Defence Authorization Act for Fiscal Year 2013, the Secretary of Defence established a Response Systems to Adult Sexual Assault Crimes Panel (RSP) to conduct an independent review and assessment of the systems used to investigate, prosecute, and adjudicate crimes involving adult sexual assault and related offenses within the American armed forces. The RSP consisted of nine members from academic, legal, judicial, and other military and civilian backgrounds. The RSP issued its final report on 27 June 2014, wherein the seven-member majority of the panel recommended that military commanders’ broad discretion to make decisions in respect of prosecutions (i.e.: by convening courts-martial) and in respect of reviews of the findings and sentences of courts-martial be substantially preserved. Two members of the RSP, in dissent, recommended the abolishment of this command discretion in order to permit the armed forces to deal more effectively with sexual crimes, and to better protect the rights of victims and accused persons.4
Generally speaking, it appeared that members of the military chain of command were relatively satisfied with the results that the court-martial system was producing. However, many also recognize that it is becoming increasingly difficult to provide justifications for the currently extensive powers that commanders have within the system that the civilian public will accept.
The CMCRT was informed that it can be a challenge for military litigation counsel to acquire the same degree of expertise in criminal matters as their civilian counterparts, since JAG officers are, by nature, generalists who complete tours in vastly different fields of law over the course of their careers, at approximately two-year intervals.5
5.2.2.1 Technical Visit
From 22 to 26 August, two members of the CMCRT conducted an in-person technical visit to Australia. There, the team members engaged in face-to-face consultations with, among others, the Head of Defence Legal Division in the Department of Defence, the Director General ADF Legal Services, the Registrar of Military Justice, the Director of Defence Counsel Services, the Director of Military Prosecutions, the Inspector General of the Australian Defence Forces, the Chief Judge Advocate, and the Judge Advocate General.
The Australian Defence Forces total around 58 000 regular force members, with about 19 000 additional members of the reserve force. Australia regularly commits its armed forces to international operations. Over the previous five years, their court martial system conducted on average about 50 trials per year. On average, there are 4-5 appeals per year.
5.2.2.2 The Australian Court Martial System
5.2.2.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
Defence Force magistrates and courts martial have jurisdiction to hear charges against members of the defence force and in certain circumstances, reservists and civilians. Defence Force magistrates and courts martial can conduct sessions abroad.
Judge Advocates both sit as Defence Force magistrates and at court martial. A Judge Advocate is appointed by the Chief of the Defence Force or a service chief on recommendation of the JAG6 and must be an officer who is enrolled as a legal practitioner for no less than five years. He or she is appointed for a period of up to three years and may be reappointed. While Judge Advocates enjoy a number of protections intended to promote their actual and perceived independence, they unequivocally exercise executive and not judicial authority. When they sit, Judge Advocates wear their uniform with a robe over the top.
A Defence Force Magistrate’s trial is presided over by a Judge Advocate who typically holds the rank of at least Colonel.7 A Defence Force Magistrate has all the powers of a restricted court martial. He or she sits alone as both the decider of fact and law and has available to him or her all but the most severe of punishments allowable under the Defence Force Discipline Act (DFDA). A Defence Force magistrate gives reasons for decision both on the determination of guilt or not and on sentence; courts martial do not give reasons for either the verdict or the sentence imposed.
A general court martial panel comprises a president, who is not below the rank of Colonel and not less than four military members. A restricted court martial panel consists of a president, who is not below the rank of Lieutenant Colonel, and not less than two military members. A general court martial has wider powers of punishment than a restricted court martial.
Responsibility for matters of fact and law are split at courts martial. A Judge Advocate gives binding advice to the panel on matters of law. Matters of fact are decided by the court martial panel. Only the court martial panel8 will decide on whether the accused is guilty or not and on the appropriate sentence, if any. Every question shall be decided by a majority of the votes of the members.
If a Defence Force Magistrate or a court martial convicts a person of a service offence, a reviewing authority shall, after obtaining legal advice from a legal officer, review the proceedings.
Various changes to the Defence Force magistrates and courts martial structure have been proposed in legislative initiatives since 2006, but the only changes that were ever enacted and implemented were through the Defence Legislation Amendment Bill 2006 (which created the Australia Military Court). These changes were subsequently struck down as unconstitutional in 2008 by the High Court of Australia in Lane v Morrison9. Since then, interim measures have been successfully adopted, to reinstate the Defence Force magistrate / court martial system that is described above.
5.2.2.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
The Director of Military Prosecutions, who is positioned outside of the normal military chain of command, is appointed by the Minister for Defence (and reports directly to him) for a period not exceeding five years. He or she must be a legal practitioner of not less than five years’ experience, and be a member of the Permanent Navy, Regular Army or Permanent Air Force, or a member of the Reserves rendering full-time service, holding a rank not lower than Brigadier.
The DMP supervises a team of prosecutors, who are mostly uniformed legal officers. The DMP has limited ability to control who is posted to his/her organization, as Defence Legal controls the postings of military prosecutors. Furthermore, there is no specialized litigation career track within the legal officer occupation. The DMP can also be assisted by reserve force legal officers who form part of the DCS Panel, mentioned hereafter.
When exercising prosecutorial discretions, prosecutors are required to take into account command interest without being bound by it. In practice, upon referral of charges to DMP (which is carried out by the charge-layer), DMP writes to affected commanders, seeking their input regarding the service interest in proceeding with the charges.
5.2.2.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
The Director of Defence Counsel Services is appointed by the Chief of the Defence Force by written instrument. He or she is situated outside of the chain of command and reports directly to the Associate Secretary to the Department of Defence. He or she must be enrolled as a legal practitioner for at least five years and be a member of the Permanent Forces or a member of the Reserves who is rendering continuous full-time service, holding a rank not lower than Colonel. The DDCS is assisted by a legal officer, a business manager and a case manager.
The DDCS’s role is essentially that of an administrator who manages the provision of legal representation and advice by legal officers to accused persons before the Tribunal. DDCS maintains a list of Australia Defence Force (ADF) legal officers who express a willingness to perform tasks as part of the wider DDCS functions. This list is referred to as a DCS Panel. DDCS assigns ADF legal officers (usually, but not exclusively, members of the Reserve forces) to act as defending officers before the Defence Force magistrate / court martial, at no expense to the accused persons.
The DDCS may not authorize the provision of legal assistance in respect of proceedings conducted before the Defence Force Discipline Appeal Tribunal (DFDAT). Legal assistance for proceedings before the DFDAT may be available to a defence member through the arrangement of the Commonwealth financial assistance program for legal proceedings.
5.2.2.2.4 The substantive body of service offences
The DFDA provides for a number of military offences, such as absence without leave and disobeying an order or service regulations which may be tried by the Defence Force magistrate / court martial.
Most civilian criminal offences are incorporated into the court martial system.
However, DFDA prosecutions can only be conducted for the purpose of maintaining or enforcing discipline.10 As a means of clarifying jurisdictional matters between the DMP and the Directors of Public Prosecution Services of the different Australian states and territories, these officials entered into a Memorandum of Understanding on 22 May 2007.11 Where the DMP is in doubt as to whether a sufficient service connection or military nexus exists in respect of a civil offence, the DMP must consult with the appropriate Director of Public Prosecutions (DPP) to determine whether the public interest would be better served by a prosecution in the civilian criminal justice system.12 In addition, in order to commence proceedings in respect of certain criminal offences (treason, murder, manslaughter, bigamy or any offence involving sexual assault), section 63 of the DFDA requires the Commonwealth Director of Public Prosecutions’ consent.
5.2.2.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The sentences open to the Defence Force magistrate / court martial are, in decreasing order of severity, as follows: imprisonment; dismissal from the Defence Force; detention; reduction in rank; forfeiture of service for the purposes of promotion; forfeiture of seniority; fine; severe reprimand; restriction of privileges; stoppage of leave; extra duties; extra drill; and reprimand.
In determining what action should be taken in relation to a convicted person, the DFDA provides that the Defence Force magistrate / court martial shall have regard to the principles of sentencing applied by the civilian courts, and the need to maintain discipline in the Defence Force.
5.2.2.2.6 The laws of evidence that apply at trials in respect of service offences
There is no notable specialization in the rules of evidence for military cases in Australia. The rules of evidence in force in the Jervis Bay Territory, namely the rules of evidence applicable in proceedings before a court of the Australian Capital Territory, apply in relation to proceedings before the Defence Force magistrate / court martial as if it were a court of the Jervis Bay Territory and the proceedings were criminal proceedings in the Territory.
5.2.2.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
The Defence Force Discipline Appeal Tribunal consists of a President, a Deputy President and such other persons as are appointed to be members of the DFDAT. To be appointed to the DFDAT, a person must be a Justice or Judge of a federal court or of the Supreme Court of a State or Territory.
A convicted person or a prescribed acquitted person may appeal to the DFDAT against his or her conviction or his or her prescribed acquittal but an appeal on a ground that is not a question of law may not be brought except by leave of the DFDAT. The Director of Military Prosecutions has no right of appeal to the Defence Force Discipline Appeal Tribunal.
5.2.2.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
In 2012, the Sexual Misconduct Prevention and Response Office (SeMPRO) was established to provide services for ADF members who have been affected by sexual misconduct. SeMPRO can assist victims by supporting them making a formal complaint; through the collection of forensic evidence; and through the processes such as investigations and legal procedures. SeMPRO works closely with the Australian Defence Force Investigative Service (ADFIS) and DMP to ensure that victims are provided seamless support as their case moves through the system.
5.2.2.3 Observations on Australia’s Court Martial System
It was suggested to the CMCRT by most ADF interlocutors that any reform to the Canadian court martial system must be carefully considered and their constitutionality, thoroughly assessed.13 The Australian example should be viewed as a cautionary tale: its military justice reforms were struck down as unconstitutional in 2008 by the High Court of Australia in Lane v Morrison and almost ten years later, successive interim measure laws have been adopted to ensure the continued operation of the system.
The CMCRT was informed that the court martial system is overwhelmingly perceived by the chain of command as too slow, too complicated and too expensive and that sentences are seen as too lenient. To address delays, the Registrar of Military Justice (RMJ) had adopted a set of Key Performance Indicators (KPIs) related to case management. As a result, from the period of 1 January to 31 December 2015, within two weeks of receipt of referral from DMP or appointment of defense lawyer, 94% of matters had a trial date fixed. The average number of days to fix a trial date was 9.7 days. And, within three months of receipt of referral by the RMJ from DMP, 84% of proceedings were commenced.14 The CMCRT was also informed that, despite these measures, the chain of command continued to perceive the court martial system as too slow.
There were currently 2 regular force Judge Advocates/Defence Force Magistrates and 2 reserve force Judge Advocates/Defence Force Magistrates dealing with an average of 50 courts martial per year. According to some, having military judicial officers provided legitimacy to the system: those applying the law are also subject to the law. The CMCRT was also informed that having a mix of regular force and reserve force officers on the bench allowed for a diversity of experience and expertise (service knowledge vs. criminal law).
Although courts martial can deploy in theatre of operations, they seldom do so. One court martial was recently held in Iraq.
The CMCRT was informed that the vast majority (80%) of trials were judge-alone. When there are panels sitting, the RMJ reported that there were significant cost benefits of having panel members selected from within the region where the court martial is held, if possible.15 It was also reported to the CMCRT that there were significant cost benefits of contracting out court reporters from within the region where the court martial is being held, as opposed to having full-time military court reporters who travel to each court martial location.
The CMCRT was informed that there were benefits of having a mix of regular and reserve force legal officers within the court martial system. Regular force prosecutors tended to generally have greater service knowledge while reserve force defence counsels tended to generally have greater criminal law expertise and advocacy skills. However, the CMCRT observed that the ADF has a significantly higher establishment of reserve legal officers compared to Canada.16
Because the actual line prosecutors are supplied to DMP from the existing legal services, DMP seems to have limited ability to control who is placed on his or her staff, and when. It was reported to the CMCRT that it can be a challenge for military litigation counsel to acquire the same degree of expertise in criminal matters as their civilian counterparts, since they are, by nature, generalists who complete tours in vastly different fields of law over the course of their careers. For this reason, there appeared to be a consensus that a career litigation track would be desirable for all uniformed military prosecutors. Under this scheme, military prosecutors would be posted in for a fixed number of years in order to allow them to develop litigation skills and criminal law expertise, and would subsequently be posted as military prosecutors at every other posting.
The fact that DDCS remains a legal officer whose budget is controlled by the executive is seen by some as feeding the perceived lack of independence. The frequent rank disproportion between military prosecutors who are higher ranking than defence counsels may also appear to influence the outcome of a case.
There appeared to be a consensus among all ADF personnel consulted on the need to have a tariff on the extent of defence counsel services that can be provided to accused persons. This could narrow the issues raised by defence counsels and diminish delays within the court martial system.
The use of uniformed prosecutors and/or defence counsel, posed a different sort of challenge as well. The CMCRT was informed that lower-ranking witnesses may at times be inhibited from providing completely candid and genuine testimony in the face of examination-in-chief or cross-examination questioning from a higher-ranking military officer; in such cases, witnesses can be intimidated by the rank of counsel (if it is not their daily practice to interact with officers of such ranks), or may be overly willing to accept a leading statement or question that is put to them by counsel (out of a habit of deference to more senior officers and a reluctance to contradict a superior). Furthermore, the opposite phenomenon can also be an issue, where uniformed trial counsel are subordinate to a witness who is being cross-examined, and where the cross-examination is not as probing, confrontational, or effective as a result of the rank differential. All of these phenomena could affect trial fairness and accuracy of the outcomes, if witness testimony is compromised to a high degree.
5.2.3.1 Technical Visit
From 29 to 30 August, two members of the CMCRT conducted an in-person technical visit to New Zealand. There, the team members engaged in face-to-face consultations with the Registrar of Military Justice, the Director of Military Prosecutions, the Assistant Director of Military Prosecutions, the Judge Advocate General and a former legal advisor to the New Zealand Defence Force (NZDF).
New Zealand’s armed forces consist of about 11,500 regular force members, and 2300 reservists. New Zealand deploys its forces internationally on coalition-type missions.
Over the previous several years, their court martial system conducted on average fewer than 10 trials per year.
5.2.3.2 The New Zealand Court Martial System
5.2.3.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
In the Court Martial of New Zealand, which was established in 2009, cases are heard by a judge and three or five military members. The Court Martial, which can sit either in New Zealand or overseas, has jurisdiction to hear any charge against members of the Regular Forces and Territorial Forces, (Active Reserves) and, in certain circumstances, members of the Reserve Forces and civilians.
The Judge Advocate General (JAG), a civilian barrister, is appointed by the Governor-General and is also the Chief Judge of the Court Martial. He or she has the same security of tenure and immunities as a High Court judge, and a retirement age of 75. The other judges of the Court Martial must have been barristers for at least 7 years, or must be District Court judges. The Governor-General appoints at a minimum 6 judges, who must retire upon reaching age 70. The JAG assigns the judge who will preside in each case.
Three military members are assigned for each case, except in cases where the maximum punishment for the offence is life imprisonment or a term of imprisonment of 20 years or more, in which case, five members will be assigned. In each case the assignment is made independently of command by the Registrar.
The decision to convict or acquit will be determined by the unanimous votes of the military members alone (and not the judge). Thus, at the Court Martial, the judges do not make any findings of fact during the trial phase. If the military members are unable to reach unanimity, then the judge will discharge the military members and refer the charge to the Director of Military Prosecutions (DMP), who will decide whether or not to seek a new trial.
Sentences are determined by the panel and judge together and decided by majority vote of the judge and the military members. If there is an equality of votes, then the judge will have a casting vote. Reasons will be delivered by the judge on the sentence imposed. No reasons are given for the decision to convict or acquit by the military members.
5.2.3.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
The Director of Military Prosecutions is appointed by the Governor-General by warrant. The DMP is an officer who has been a barrister or solicitor for not less than seven years. The DMP acts under the supervision of the Solicitor-General. In his or her role, the DMP is not under the control of the Minister of Defence or under the command of Chief of Defence Force.
In practice, the DMP is also the Director or Director General of Defence Legal Services (DGDLS). However, when acting as the DMP, that officer is statutorily under the general supervision of the Solicitor-General, and is not subject to the control of the Minister for Defence, or subject to the command of any other military officer.
The DMP generally appoints a legal officer from the local base to act as the prosecutor for a case. Prosecutors can also be drawn from Crown Counsel or from private practice.
In order to take into account the view of the senior command in making prosecutorial decisions, it is mandatory for superior commanders to make non-binding recommendations regarding the disposal of the case to the prosecutor. This is limited to the question of Service interest, rather than evidential sufficiency.
5.2.3.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
An accused may request representation in the Court Martial and the Court Martial Appeal Court, the Court of Appeal, or the Supreme Court. The Armed Forces Legal Aid Scheme provides for the assignment of defence counsel (who appear as civilian legal practitioners). However, the scheme does not provide for counsel of choice. The Court Martial Registrar administers the legal aid panel and assigns counsel to each case.
The accused is ordinarily required to contribute towards the cost of legal aid. For instance, if the accused or appellant is a member of the regular forces, he or she will be required to pay 3% of his or her gross taxable pay for the 12 months immediately before the commencement of the relevant proceedings in the Court Martial.
An accused may also receive legal assistance without cost if he or she does not have sufficient means to provide for that assistance and if the interests of justice so require.
Counsel representing accused persons are compensated for a fixed number of hours in accordance with a certified scale that fixes the fees and allowances payable for work done. Counsel may request additional compensation depending on the circumstances and complexity of the case. Decisions regarding extra compensation are made by the Solicitor-General.
An accused may also engage counsel independently. When he or she does so, the accused is solely responsible for the payment of his or her fees.
An accused may also choose to be represented by a member of the Armed Forces who is not a lawyer (defender).17
5.2.3.2.4 The substantive body of service offences
The civilian Criminal Law (which can be mostly found in the Crimes Act 1961) applies to all military personnel. Civilian courts and military tribunals have concurrent jurisdiction to deal with these offences (without any military nexus requirement). In addition to these civil offences, a complimentary legal regime found in the Armed Forces Discipline Act 1971 applies to military personnel (and, in some cases, civilians) and may only be dealt with by military tribunals. It creates a number of uniquely military offences, such as absence without leave and disobeying an order.
5.2.3.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The sentences open to the Court Martial are, in decreasing order of severity, as follows: imprisonment; dismissal from Her Majesty’s Service; detention (not applicable to officers); reduction in rank; forfeiture of seniority; stay of seniority; fine; severe reprimand; reprimand.
The orders that may be made by the Court Martial in addition to, or in lieu of, a sentence, and the manner of their expression are as follows: compensation; restitution; forfeiture; order to come up for sentence if called on; detention as special patient; detention as patient; mental health release; mental health custodial order; mental health inpatient order.
The Armed Forces Discipline Committee18 produces Sentencing Guidelines to assist with sentencing members of the Armed Forces. The Court Martial must ensure that any sentence passed is consistent with these Guidelines to the extent that they are relevant to the offender’s case, unless it would be contrary to the interests of justice to do so.
5.2.3.2.6 The laws of evidence that apply at trials in respect of service offences
The law of evidence applied by the Court Martial is the same as in civilian courts. There is no specialization in the rules of evidence for military cases.
5.2.3.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
The Court Martial Appeal Court may hear an appeal by a convicted Service member against his or her conviction and sentence. The Director of Military Prosecutions may appeal to the court against the sentence imposed by the Court Martial, unless the sentence is one fixed by law.
Judges of the High Court (equivalent to a Superior Court Judge in Canada) and Barristers, under certain conditions, can sit on the Court Martial Appeal Court (in benches of three). The presiding Judge is invariably a High Court Judge.
A party to an appeal may appeal, with leave, to the Court of Appeal19 or the Supreme Court against any decision of the court in the appeal.
5.2.3.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
The Sexual Assault Response Team (SART) was established to provide services for New Zealand Defence Force (NZDF) members who have been affected by sexual misconduct. SART can assist victims by supporting them making a formal complaint; through the collection of forensic evidence; and through the processes such as investigations and legal procedures.
The Court Martial is required to consider the needs of victims of sexual offending, for example by providing for support persons to be present during the trial. The Court Martial has the power to suppress the publication of material relating to sexual offending, and must order that the court be cleared for the hearing of certain evidence. The Court has the inherent right to provide for evidence to be given from behind a screen.
Victims of any offending have the right to give a Victim Impact Statement which must be considered by the Court in sentencing.
Te Reo Māori (the language of the Maori people) is an official language of New Zealand. If a person wishes to speak Te Reo Māori, an interpreter will be provided. The same is true of New Zealand sign language.
In the rare circumstances of trying a child before the Court Martial the accused must be dealt with in a manner that takes account of the child's age.
5.2.3.3 Observations on New Zealand’s Court Martial System
It was reported to the CMCRT that there did not seem to be significant negative consequence in the New Zealand context to having civilian judges presiding in the Court Martial, regardless of whether the individual judges did or did not have previous military service. In contrast, having a civilian judge, cross-appointed to a civilian court, presiding at the Court Martial appeared to have many advantages. The objective legitimacy and independence of the tribunal appeared to be increased, since civilian judges could not reasonably be seen as being subordinate to New Zealand’s military chain of command. Furthermore, being cross-appointed to a civilian court, enhances the Court Martial’s criminal and adjudicative expertise. However, it was reported to the CMCRT that the civilian judges’ judicial unavailability can create challenges in the Court Martial.
Military knowledge appears to be brought to the tribunal through the panel membership (who, in New Zealand, are both finders of fact and participants in sentencing in all cases). Military knowledge also appears to be brought through the military prosecution service, either by the evidence it calls, or by the simple fact that the prosecutors themselves are usually military members. Any suggestions that civilian judges would in some respects create unfairness to the accused or to the public due to a lack of military or service knowledge appear to the CMCRT to have been largely unsubstantiated in the New Zealand context.
The CMCRT took note of the surprisingly high number of civilian judges cross-appointed to the Court Martial in proportion to the number of trials per year, due to the judges’ judicial unavailability. There are currently 6 judges that deal with an average of 10 trials per year.
The CMCRT was informed that before the 2007 reform, courts martial had deployed in theatre of operations (e.g. Bosnia, Timor). The Court Martial has not deployed since its creation. There appeared to be no doubt that a civilian judge would agree to preside over such a trial; on the contrary, they would probably have too many judges who would want to deploy. That was the experience in respect of the call for volunteers to deploy from among the civilian judge advocates under the previous system. However, the team was informed that the NZDF probably do not deploy in sufficient numbers nowadays to guarantee an independent and impartial panel to the accused. It would be necessary to deploy one or more military members to compensate for this, if other considerations made a trial outside New Zealand desirable. Moreover, while the Director of Military Prosecutions acts under the supervision of the Solicitor-General in the execution of his or her prosecutorial duties, he or she can retain additional military duties and functions, in which capacity he or she would not be independent. For example, the Director of Military Prosecutions is also usually the Director or the DGDLS. Hypothetically, it would therefore be possible for the DMP to face a situation where he or she would need to decide whether to prosecute an accused person in respect of an operational offence, and where the accused person’s actions were consistent with legal advice provided by the DMP in his or her other capacity as DGDLS. This creates a risk of perception of conflict of interest.
The CMCRT was also informed that a relatively low number of trials take place in the Court Martial of New Zealand each year, such that military prosecutors, who are usually legal officers drawn from the local base, may only participate in a very few trials over a couple of years. The CMCRT was informed that it could be difficult to develop litigation expertise as a military prosecutor under such circumstances.
The CMCRT was informed that having sentencing guidelines enacted by the Armed Forces Discipline Committee allows for combined input from the Chain of Command and the judiciary, which was especially important when civilian judges participate in sentencing. Furthermore, it was reported to the CMCRT that the fact that both the civilian judge and the military members participate in the sentencing process allows for sensitivity to the realities of military life while ensuring consistency in sentencing decisions.
The CMCRT was informed that the benefits of having a tariff on the extent of defence counsel services that can be provided to accused persons. This allowed to narrow the issues raised by defence counsel and diminish delays within the court martial system.
5.2.4.1 Technical Visit
On 16 September, 2016, two members of the CMCRT met with system actors from the Irish court martial system, including a representative from the Court Martial Administrator, a prosecutor from the Director of Military Prosecutions’ Office, and Ireland’s Military Judge.
The Irish armed forces, consist of about 9200 members of the permanent force and 2400 reservists. The Irish armed forces are still regularly committed to international operations, including United Nations missions, and regularly sees anywhere between 6-10% of its total strength deployed at any given time.
There are currently 7 military lawyers serving in the Defence Forces Legal Service. Over the previous four years, their court martial system conducted on average 10 trials (including appeals from summary hearing) per year.
5.2.4.2 Ireland’s Court Martial System
5.2.4.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
Ireland’s court martial system has many similarities with Canada’s. Ireland has three types of military tribunals, all three of which may sit at any place, both inside Ireland and abroad. The Summary Court Martial (SCM) is a standing Military Court consisting of a Military Judge sitting alone. It hears less serious offences under military law, can try all persons of or below the rank of Commandant (equivalent to the Canadian rank of Major), and has a maximum power of punishment of imprisonment for six months. It hears the vast majority of Irish court martial cases. The Summary Court Martial can also hear appeals from summary trial decisions.
Ireland also has two ad hoc tribunals to deal with more serious matters: Limited Courts Martial (LCM), which can only try non-commissioned members and has a maximum sentencing power of up to two years imprisonment; and General Courts Martial, which can try all ranks and has sentencing powers of up to imprisonment for life. Both LCMs and GCMs consist of a military judge, who decides all questions of law and the sentence, and a Board, made up of military members, that decides all questions of fact and the verdict on the basis of a 2/3 majority vote. The Board consists of three members in the case of a LCM, and five members in the case of a GCM.
In Ireland, a military judge is appointed by the President of Ireland, and must be a practicing barrister or solicitor of at least ten years standing. Military judges hold office until retirement, removable only for cause. Although they can be appointed from either inside or outside of the Permanent Defence Force, once they are appointed, military judges hold a rank of not less than Colonel. They are independent in the performance of their functions, and perform only judicial duties. There has not yet been more than one military judge appointed at a time.
5.2.4.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
In Ireland, the Government appoints a lawyer to be the Director of Military Prosecutions. The DMP is a military officer, but it is possible for the Government to appoint someone who was never before a member of the defence forces. The DMP makes the final decision as to whether a case will be prosecuted by court martial, is statutorily independent when carrying out his or her functions, and can only be removed for cause under statutorily enumerated grounds. The Government must give reasons in the legislature for removing the DMP. The DMP may also have additional military duties concurrent with his or her duties as the DMP (for instance, the DMP is currently also the senior military legal advisor within the defence forces). The DMP supervises a team of prosecutors, who are military lawyers, and who are often also unit legal advisors.
5.2.4.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
An accused person at a Court-Martial may choose to be assisted by a commissioned officer of the Defence Forces (known as a “Defending Officer”), who is not usually a qualified lawyer, or by a civilian lawyer of his or her own choice.
Ireland has a legal aid scheme for courts martial, available during the stages of investigation, trial, appeal (up to the Supreme Court), and stated case. The currently prescribed Legal Aid Authority is the Military Judge of the Standing Court Martial, before whom applications for legal aid are made. The entitlement to legal aid is means-tested, alongside considerations of trial complexity, seriousness, and fairness. There is a regulatory tariff, which sets fees payable to lawyers on certificates, and the percentage payable for particular kinds of matters. If legal aid is approved, then no contribution toward the cost of the defence is required from an accused person. Only civilian counsel – usually solicitors – are engaged as defence lawyers within the legal aid scheme.
5.2.4.2.4 The substantive body of service offences
Ireland’s military offences are contained within its Defence Act, 1954 (as revised), and are very similar to those found in Canada’s Code of Service Discipline. Ireland’s military legislation contains a provision which incorporates by reference all ordinary criminal offences and makes them offences under military law. For the most part, concurrent jurisdiction exists between the military and civilian criminal justice systems over these civil offences, although for a small group of the most serious offences (called “relevant offences”), the Director of Public Prosecutions has exclusive jurisdiction.
5.2.4.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
Ireland has specific military punishments, which apply differently to officers and non-commissioned members (the main difference being non-commissioned members cannot be “dismissed,” but are “discharged,” and officers cannot be sentenced to detention). Some examples of uniquely military punishments include dismissal with disgrace, reduction in rank, forfeiture of seniority, and reprimands. Both officers and non-commissioned members can be sentenced to imprisonment, for periods of up to imprisonment for life.
Irish courts martial have the ability to suspend sentences of imprisonment and detention, and can attach specific conditions to such suspensions.
5.2.4.2.6 The laws of evidence that apply at trials in respect of service offences
The law of evidence at Irish courts martial is the same as in civilian courts. There are some special rules detailing how some uniquely military matters may be proved (e.g.: what evidence can prove whether a person was a member of the defence force, or a patient in a hospital, and whether a particular ship was a State Ship).
5.2.4.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
Ireland has abolished its Court Martial Appeal Court; all appeals are now to the Irish Court of Appeal, and further appeals may be taken to the Supreme Court of Ireland. Offenders have an appeal as of right against the finding or sentence, or both, from any court martial. The DMP can also request the Court of Appeal to review the court martial sentence for undue leniency in certain circumstances.
Either the prosecution or the offender may appeal on a question of law (“case Stated”) from the Summary Court Martial, when sitting as an appeal of a summary trial.
5.2.4.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.
Ireland’s military justice system has special procedural and jurisdictional considerations for some sexual offences. If an accused was neither on active service nor deployed, then the military justice system may only try a rape charge if the victim is military, the victim consents, and the civilian prosecutor consents.
5.2.4.3 Observations on Ireland’s Court Martial System
The CMCRT took note of the remarkable similarities between Ireland’s and Canada’s court martial systems.20 However, the CMCRT was informed of some key differences.
First, the current military judge, Colonel Michael Campion, was previously a civilian lawyer with significant litigation experience who was appointed as a military judge from the civilian bar, but who was also a reserve force officer (not a legal officer) for many years. It appeared to the CMCRT, based upon discussions with multiple system actors, that the criminal law and litigation expertise possessed by the military judge was assessed as critical to the proper administration of military justice in the Irish system.
Second, while the Director of Military Prosecutions is statutorily independent in the execution of his or her prosecutorial duties, he or she can retain additional military duties and functions, in which capacity he or she would not be independent. For example, the Director of Military Prosecutions is also currently the senior military legal advisor, including on matters of military operational law. Hypothetically, it would therefore be possible for the DMP to face a situation where he would need to decide whether to prosecute an accused person in respect of an operational offence, and where the accused person’s actions were consistent with legal advice provided by the DMP in his other capacity as the senior military legal advisor.
Third, it was reported to the CMCRT that a relatively low number of court martial trials take place in Ireland each year, such that each military prosecutor may only participate in a few such trials. The CMCRT notes that it could be difficult to develop litigation expertise as a military prosecutor under such circumstances, but also notes that with such a small number of legal officers (7) within the Irish armed forces, it would likely be impractical to implement a more specialized career track for military prosecutors.
Furthermore, unlike Canada’s fully-funded defence counsel model, legal aid is only provided to those who have demonstrated on application that they do not have the means to pay for their own counsel in the Irish system. The CMCRT was informed that the regulatory legal aid authority is the Irish Military Judge, which is unique within Anglo-American court martial systems.
The CMCRT assessed that, in Ireland, there were no apparent negative consequences flowing from the practice of having civilian defence counsel at court martial, for the accused person, the Irish public, or the armed forces. The CMCRT did note, however, that in some cases (especially those involving relatively minor offences) it appeared to be to the accused person’s advantage to choose a non-legally trained officer to defend him or her, instead of a civilian lawyer. In those cases, the CMCRT perceived that the court martial might give more significant weight to the submissions of the defending officer (for example, in respect of submissions for leniency at sentencing).
In contrast to Canada’s Military Rules of Evidence, the rules of evidence applicable in the Irish court martial system are almost entirely the same as those of civil criminal courts, with some specific, statutory rules dealing with particular military matters. This similarity of evidence laws appeared to be held as a positive feature within the two justice systems the similarity supported the presence of civilian defence counsel within the system more than uniquely military rules of evidence would allow.
Lastly, the CMCRT was informed of the requirement to obtain the consent of the civilian prosecution service in order to pursue certain (“relevant”) offences, especially sexual offences, in the court martial system. The CMCRT took special note of the role that the victim can play in choosing whether a particular prosecution is taken is either the ordinary civil courts, or in the Irish court martial system.
5.2.5.1 Technical Visit
Following their technical visit to Ireland, the same two members of the CMCRT conducted an in-person visit to the United Kingdom from 19-23 September 2016, where they conducted consultations with the following stakeholders: the UK’s Director of Service Prosecutions and members of his staff; the Director of the Military Court Service; the Head of the Armed Forces Criminal Legal Aid Authority; the Head of Legislation at the Ministry of Defence; Members of the Royal Navy’s Legal Services – Discipline section; the Royal Navy Provost Marshal; and, the Judge Advocate General.
The CMCRT also received input by correspondence from the Army Legal Services – Discipline section.
The United Kingdom’s armed forces, consisting principally of the Royal Navy (and the Royal Marines), the Army, and the Royal Air Force, consists of approximately 153 000 regular members, and 81 000 reserve members. Generally speaking, approximately 500 trials are conducted in the Court Martial each year.
5.2.5.2 The United Kingdom’s Court Martial System
5.2.5.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
The Court Martial of the United Kingdom (UK) is a standing, permanent court. It may sit anywhere, both inside of the UK and abroad.
The current tribunal model evolved into its present form through a series of incremental legislative changes that were largely responsive to decisions of the European Court of Human Rights in the case of Findlay v UK (judgment of 25 February 1997), Morris v UK (no. 38784/97, ECHR 2002-I), and Cooper v UK (no. 48843/99, ECHR 2003), and Grieves v UK (no. 57067/00, ECHR 2003), which (collectively) held that aspects of the previous ad hoc tribunal system were problematic in terms of the right to an independent and impartial trial that is guaranteed under article 6 of the European Convention on Human Rights. The most comprehensive of these legislative changes came in the form of the Armed Forces Act 2006, which replaced the previously separate Army, Royal Naval and Royal Air Force service discipline systems with a single system, and which created a civilian permanent Court Martial, and an independent Service Prosecuting Authority.
Judges of the Court Martial, referred to as “Judge Advocates,” are civilians. They are appointed by the Lord Chancellor on the recommendation of the independent Judicial Appointments Commission in the same manner as District and Circuit Court judges, must have at least ten years standing as a barrister, solicitor, or advocate, and are not required to have prior military service. They are regularly cross-appointed to the civilian Crown Court (which hears serious, indictable offences, and conducts jury trials).
The chief judge of the Court Martial hold the title of Judge Advocate General. He or she is appointed by Her Majesty the Queen, and is currently also cross-appointed to the Crown Court and the High Court. In addition to his or her judicial and supervisory duties, the JAG provides guidance to all stakeholders in the Services’ criminal justice system on practices and procedures, developments and reforms, and advises on the system’s efficiency and effectiveness, although it is important to note that the setting of policy is solely a matter for Her Majesty’s Government.
At the Court Martial, findings of fact are made by the Board, which almost always consists of three to five commissioned officers and Warrant Officers, depending upon the seriousness of the case. There are certain circumstances in which the Board can be increased to six or seven members (i.e.: proceedings likely to likely to last more than ten courts days, or proceedings held outside the UK and Germany that are likely to last more than five court days). Guilt is determined by majority vote. The Board and Judge Advocate determine the sentence together.
All persons subject to service law, and civilians subject to service discipline, may be tried by the Court Martial. Members of the regular forces are subject to service law at all times and in all places, while members of the reserve forces are subject to service law only under enumerated circumstances (essentially, when on call-out or full-time service). Civilians (often dependents of service members) are subject to service discipline in specific circumstances.
When trying civilians, the Court Martial can be constituted with a Board consisting of civilians, and the Judge Advocate will sentence alone.
Judge Advocates can also sit, alone, as a Service Civilian Court, but only outside of the UK. The Service Civilian Court has jurisdiction to try civilians subject to service discipline, and usually does so for minor offences. Civilians are only subject to service discipline when accompanying the Armed Forces overseas. The Service Justice System has no jurisdiction over civilians within the UK.
From a court administration perspective, court reporting services are provided to the Court Martial on a contractual basis with civilian service providers. These services are relied upon to rapidly produce transcripts in all environments where the Court Martial sits, including outside of the United Kingdom.
5.2.5.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
In the UK, a barrister or solicitor, or advocate, of at least 10 years standing, may be appointed as the Director of Service Prosecutions (DSP) by Her Majesty the Queen. The DSP is a senior civil servant, and is completely independent from the military chain of command.
The DSP leads the Service Prosecuting Authority (SPA), and has a team of prosecutors who may either be military members or civilians. Such prosecutors answer to the DSP regarding the performance of their duties, but as either barristers or solicitors, they are also responsible to the Bar Standards Board or the Solicitors Regulatory Authority (respectively) for the performance of their duties as lawyers. At the time of the CMCRT’s technical visit, the SPA consisted of only military officers as prosecutors who were posted into positions with the SPA by military authorities within the Army, Royal Navy, and Royal Air Force.
The DSP and the SPA fall under the general superintendence of the Attorney General, and not of the Secretary of State for Defence.
5.2.5.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
The UK has a well-developed legal-aid scheme for persons accused of offences under service law, designed to mirror the civilian legal aid scheme. There is an application process, with means-tested thresholds. Persons whose disposable income falls between the high- and low-income thresholds may qualify for legal aid, but are obliged to make contributions towards the cost of their defence based upon their assessed ability to pay. Defence lawyers are either barristers or solicitors, and are generally civilians. Persons above the high-income threshold are entitled to legal aid but would pay 100% contribution. This means that if acquitted they recover all of their costs (which would not be permissible if they funded their defence privately). Persons below the low-income threshold are entitled to legal aid and are not required to make contributions.
Accused persons have the option of requesting a service lawyer from the Royal Navy, Royal Air Force, or Army. In practice, only the Royal Navy provides defence services at Court Martial. As long as that service lawyer is available, able, and willing to take the case, then this representation can be provided free of charge.
5.2.5.2.4 The substantive body of service offences
Service offences in the UK are divided into ‘disciplinary’ and ‘criminal conduct’ offences. Disciplinary offences capture the kind of misconduct that is unique to the armed forces. Section 42 of the Armed Forces Act, 2006, makes it a service offence for those subject to service law to commit “criminal conduct” punishable under the criminal law of England or Wales, and has extra-territorial application (unlike within the civilian criminal justice system, where jurisdiction over criminal offences is generally limited to acts or omissions that take place within the territory of the United Kingdom).
Within the United Kingdom, there is concurrent jurisdiction between military and civilian justice authorities in respect of “criminal conduct” (civil) offences. However, the Director of Service Prosecutions and the Director of Public Prosecutions have entered into a Protocol wherein they have agreed as to how this jurisdiction should be exercised.21 In general terms, the Protocol recognizes: that civilian jurisdiction should take precedence over military jurisdiction in any cases of doubt; that the DPP will ultimately have decision-making power in such cases of doubt; and, that cases affecting civilians persons or property should normally be tried within civilian courts.22
5.2.5.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The punishments available in the UK service justice system include: imprisonment; dismissal and dismissal with disgrace; detention (not applicable to officers); forfeiture of seniority (applies only to officers); reduction in rank; fines; service community orders; reprimands and severe reprimands (do not apply to junior ratings); service supervision and punishment orders; minor punishments; and service compensation orders. Only civilians can be granted discharges. The Court Martial has the same sentencing powers in relation to imprisonment as the Crown Court, including imprisonment for life.
Service community orders are incorporated by reference from the civilian criminal justice system, but may only be applied when the service person is also dismissed from the Service (where they can then be supervised in the community by appropriate civilian authorities). They resemble the Canadian punishment of a conditional sentence of imprisonment served in the community, and include possible orders of obligatory rehabilitation or counselling, community service, curfews, and/or electronic monitoring.
Service supervision and punishment orders somewhat resemble the minor punishments of Stoppage of Leave and Extra Work and Drill found in Canada’s Queen Regulations and Orders, and service compensation orders somewhat resemble Canadian restitution orders.
5.2.5.2.6 The laws of evidence that apply at trials in respect of service offences
The law of evidence applicable at Courts Martial is generally the same as in UK civilian criminal courts. There are a few procedural modifications on the tendering of specific kinds of evidence (e.g.: hearsay evidence), as well as some special rules detailing how some service matters, including the content of standing orders, may be proved. The Court Martial is permitted by statute to take judicial notice of matters coming within the general service knowledge of the Court.
5.2.5.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
Appeals from Court Martial are heard before the Court Martial Appeal Court, which consists of civilian judges who are all drawn from the Court of Appeal (Criminal Division).
Offenders may, with leave, appeal against finding or sentence, or both, to the Court Martial Appeal Court.
If the Attorney General of the UK believes that any sentence passed at Court Martial for certain criminal conduct offences (generally indictable offences) is unduly lenient, then he or she may, with leave, appeal the sentence to the Court Martial Appeal Court.
Both the Offender and the Attorney General may, with leave, appeal a decision of the Court Martial Appeal Court on a question of law of general public importance to the Supreme Court of the United Kingdom.
5.2.5.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.
The Court Martial Rules include special procedures in order to assist vulnerable witnesses in giving their testimony, including victims.
Outside of court, in most situations, victims are entitled to a victims’ liaison officer (VLO). Victims also have informational rights (e.g. the right to be notified whether the accused is remanded or at large; timely communications regarding the progress of the case; timings and locations of hearings; etc.) as well as some transparency rights (e.g. reasons must be given for a decision not to prosecute, or a decision to substitute a lesser charge).
Victims are entitled to have decisions not to prosecute reviewed by higher authorities within the SPA (and ultimately, if necessary, by the DSP), and are to be notified of that entitlement and the procedure for initiating such a review. There is also a complaints process for victims, and victims are entitled to be informed about that process.23
Offenders under the age of 18 cannot be sentenced to imprisonment by the Court Martial. In certain circumstances (i.e.: for very serious offences), offenders under the age of 18 can be sentenced to a period of detention, similar to the civilian regime.
5.2.5.3 Observations on the UK Court Martial System
The UK interlocutors reported that there were several advantages of having a permanent court instead of ad hoc tribunals for dealing with military offences.24 The permanent nature of the Court Martial more easily enables the Court to create Rules of Court, issue orders (including on preliminary matters), make rulings regarding the enforcement of orders, immediately begin individual case management, create policy towards better systemic case management, and issue sentencing guidelines.25
There did not seem to be any perceived negative consequence in the UK to having civilian judges (judge advocates) presiding at court martial, regardless of whether the individual judge advocates did or did not have previous military service. Stakeholders within the service justice system do, however, take steps to ensure that judge advocates are able to gain an insight into military life by undertaking annual visits to see where service personnel live and work. On average, each UK judge presides over approximately 90 Court Martial trials per year. Any suggestions that civilian judges would in some respects create perceptions of unfairness to the accused or to the public due to a lack of military or service knowledge appear to the CMCRT to have been largely unsubstantiated in the UK context. The CMCRT received no examples of such a phenomenon. This may be because such military knowledge is not actually required of a court martial judge to render the trial fair, or it may be because the military knowledge is being brought to the tribunal through the panel membership (who, in the UK, are both finders of fact and participants in sentencing) or through the military prosecution service, either by the evidence it calls, or by the simple fact that the prosecutors themselves are usually military members.
In contrast, having a civilian judge, cross-appointed to a civilian criminal court, presiding at the Court Martial appeared to have many advantages. The objective legitimacy and independence of the tribunal appeared to be increased, since civilian judges could not reasonably be seen as being subordinate to the UK’s military chain of command. Furthermore, it would be difficult to reasonably criticize these judges as being “second rate” or inferior to judges in civilian criminal courts, since the judge advocates concurrently presided in such ordinary criminal courts. Their rulings were perceived as being based upon the law alone, and they did not seem to speak uniquely for or on behalf of the military chain of command, but rather on behalf of society as a whole. The UK system allows for the appointment of experts in criminal law and procedure, and also facilitates the retention of valuable knowledge and skills by providing each judge with an adequate case volume as they sit concurrently in two types of (military and civilian) criminal courts.
There did not appear to be any difficulty with having civilian judges of the Court Martial preside outside of the UK. In fact, the Court Martial has sat multiple times abroad in places like Cyprus, Belize, and the United States. So far, the Court Martial has not conducted trials in any area of active hostilities, and the CMCRT did not observe any interest among UK stakeholders to ever conduct a trial in such location, given the extent of force protection resources that would be needed to provide for the safety of the Court, and given the distraction from mission focus that a trial could represent.
On prosecutions, it was reported to the CMCRT that some advantages are associated with having a civilian Director of Service Prosecutions who falls under the superintendence of the Attorney General. A statutorily independent and civilian director cannot reasonably be seen to be subordinate to the military chain of command, and therefore may make difficult prosecutorial decisions with greater legitimacy, free from any real or perceived inappropriate influences.
It was reported to the CMCRT that there are challenges in structure of the prosecution service itself, similar to those that are faced in both Australia, Canada and the United States.26 Because the actual line prosecutors are supplied to the Director from the existing legal services branches (Army, Royal Navy, and Royal Air Force Legal Service branches), the Director seems to have limited ability to control who is placed on his staff, and when. The training and experience of officers who are posted to the prosecution service varies. There is no dedicated career track for military prosecutors, so individuals are constantly moving into and out of the prosecution service with a varying degree of experience and knowledge, across all rank levels.
There also appeared to be a challenge in the UK court martial system concerning the military knowledge of prosecutors (particularly those from the Army and Royal Air Force), who are not required to have prior military service and are not required to conduct any formal periodic re-familiarization with operational duties. Though they are uniformed armed forces members, the CMCRT noticed that some military prosecutors (through no fault of their own) can have less military knowledge than the other actors in the court room, including the panel, the judge advocate, witnesses, and sometimes experienced defence counsel. This situation could present a challenge for both internal legitimacy, as well as trial efficiency.
The CMCRT was also informed of some challenges associated with the use of military prosecutors who appear in military uniform opposite a fully gowned civilian lawyer. This difference in dress sometimes has an influence on actors within the system, such as witnesses, members of the panel, and those who are watching the proceedings. Although the differences in dress could have influences in different ways, it seemed that to some, a gowned barrister was perceived as having more credibility as trial counsel than a uniformed lawyer.
The use of uniformed prosecutors and/or defence counsel (in cases where a member has requested and been approved to receive defence counsel drawn from within the Royal Navy), posed a different sort of challenge as well. The CMCRT was informed that lower-ranking witnesses may at times be inhibited from providing completely candid and genuine testimony in the face of examination-in-chief or cross-examination questioning from a higher-ranking military officer; in such cases, witnesses can be intimidated by the rank of counsel (if it is not their daily practice to interact with officers of such ranks), or may be overly willing to accept a leading statement or question that is put to them by counsel (out of a habit of deference to more senior officers and a reluctance to contradict a superior). Furthermore, the opposite phenomenon can also be an issue, where uniformed trial counsel are subordinate to a witness who is being cross-examined, and where the cross-examination is not as probing, confrontational, or effective as a result of the rank differential. All of these phenomena could affect trial fairness and accuracy of the outcomes, if witness testimony is compromised to a high degree.
The CMCRT was informed of the special appeal process that is available to victims of offences in the UK court martial system on any decisions taken not to prosecute, and assesses that such a process would improve transparency in respect of such decisions for victims.
Lastly, it was reported to the CMCRT that, much like in Canada, delay is a major issue within the UK court martial system, although efforts (led by the judiciary) are being made to address delay through the adoption of a case management system.
5.2.6.1 Technical Visit
On 3 October, 2016, two members of the CMCRT conducted an in-person technical visit to Norway, where they had a face-to-face meeting with Norway’s Judge Advocate General, and two of his line prosecutors.
Norway’s court martial system must be understood in the broader context of information about the Norwegian armed forces. Norway’s armed forces consist of approximately 17000 regular members, with an additional 7000 conscripts rotating through per year. The CMCRT heard that in current times, military service is viewed very positively by the Norwegian public, and as a result, conscripts are high-performing young people who are very motivated.
In 2015, the court martial system dealt with around 20 criminal cases.
5.2.6.2 The Norwegian Court Martial System
5.2.6.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
In peacetime, civilian courts hear military matters. These courts may be set up with military lay judges, although such an arrangement is rare in practice. Civilian judges who hear military cases do not specialize in military matters. For military offences committed abroad, trials will be held in Norway.
In wartime, a selected number of civilian courts set up with military lay judges (two in the District Court and four in the Court of Appeal) hear military matters.
Only military persons over 25 years of age who have completed their preliminary service or similar basic training and who have lived for at least three years in Norway may serve as military lay judge.
The Military Penal Code provisions are typically directed towards military personnel. Civilian personnel in the Armed Forces can be subject to the Military Penal Code both in peacetime and wartime in certain circumstances.
The longest military trial of the past six years lasted one day.
5.2.6.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
In peacetime, military criminal cases can be prosecuted by both the military prosecution service and the civilian prosecution service. However, in practice and with the approval of the Public Prosecutor, military cases (i.e. breaches of the Military Penal Code) are prosecuted by the military prosecution service. However, civilian criminal cases (i.e. breaches of the Civilian Penal Code) are prosecuted by the civilian prosecution service.
In war time, military cases will generally be prosecuted by the military prosecution service, without the need to obtain the approval of the Public Prosecutor.
The military prosecution service falls under the Public Prosecutor, who falls under the Director of Public Prosecutions, who is himself under the supervision of the Minister of Justice. In wartime, the military prosecution service falls directly under the Director of Public Prosecution.
There are two levels within the military prosecution service: first, the Judge Advocate General of the Norwegian Armed Forces (who is the senior official within the military prosecution service); and, second, Judge Advocates for each of Northern and Southern Norway (their number varies from 3 to 4 and they are supported by two assisting Judge Advocates).
In addition to prosecuting military cases, military prosecutors also give advice on disciplinary matters that are handled by summary punishment. They thus spend all of their time working on military cases; either criminal or disciplinary.
Military prosecutors are civilian lawyers who are appointed by the Ministry of Justice. The latter determines their number, their jurisdiction, and the units or staffs in which they shall serve.
5.2.6.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
All defence counsel in Norway are civilian. In most military cases, like in civilian criminal cases, an accused person is entitled to have the costs of his or her defence paid at public expense as part of a broad type of national legal aid system. The judiciary determines the reasonableness of defence counsel fees.
5.2.6.2.4 The substantive body of service offences
In peacetime, military criminal cases include only violations of the Military Penal Code that are committed by military personnel. In wartime, military criminal cases can also include any violation of any penal provision committed in a military area, theatre of operations, or outside of Norway by military personnel.
5.2.6.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The CMCRT did not observe any notable, specialized sentencing rules or options in respect of service offences.
5.2.6.2.6 The laws of evidence that apply at trials in respect of service offences
There is no notable specialization in the rules of evidence for military cases.
5.2.6.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
Appeals of military cases are dealt with by civilian courts. Four military lay judges may sit on military cases at the Court of Appeal, although such an arrangement is rare in practice.
5.2.6.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
Victims of sexual offences can receive free legal representation during legal proceedings.
5.2.6.3 Observations on the Norwegian Court Martial System
The CMCRT took note of some advantages of having a completely civilian, but dedicated and specialized, prosecution service, separate and distinct from the uniformed service of operational legal advisors. This arrangement ensured that there was total separation between those responsible for advising on operational law and the law of armed conflict, and those responsible for prosecuting breaches of such laws. The CMCRT was informed by their Norwegian interlocutors that civilianization of the prosecutors was an essential element to ensure their objective independence and legitimacy. The CMCRT heard that rank would necessarily have an influence on prosecutors if they were part of the Armed Forces.
This arrangement also allowed for specialization within the prosecution service, both in military knowledge as well as criminal law and procedure. However, to increase the prosecution services’ expertise in criminal law and procedure, the military prosecution service suggested that there should be a secondment to state attorney’s office to get exposure and practical experience in prosecuting serious crimes. The prosecution service also advised the chain of command on disciplinary matters, thereby ensuring they acquire service knowledge through volume. This also further maintains the distinction between operational legal advisors and disciplinary legal advisors, and helping to ensure that misconduct was always dealt with at the appropriate level (i.e.: summary discipline, or criminal court) on the basis of informed legal analysis.
Nonetheless, as Norway is contemplating reform of its military justice system, the CMCRT was informed of the possible pitfalls of civilianizing the prosecution service. If offices and resources of the military prosecution service were to be completely integrated with the state attorney’s office (which is not currently the case in Norway), this would run the risk of having military cases being overshadowed by more pressing and serious civilian cases.
5.2.7.1 Technical Visit
From 4-5 October 2016, two members of the CMCRT conducted an in-person technical visit to Denmark, where they engaged in face-to-face meetings with Denmark’s Military Prosecutor General, Deputy Prosecutor General, and Project Manager; the Chief Military Prosecutor and Chief of Military Investigations; the Officer Commanding the Guard Company of the Royal Life Guards; and members of the Danish civilian judiciary who preside over military cases.
Similar to what was expressed in Norway, the CMCRT heard that in current times, military service is viewed very positively by the Danish public. Danish conscripts correspondingly tend to be highly motivated and high-performing young people. The CMCRT also heard that this motivation is sufficiently high that young women, who are not yet legally required for conscription but who are still eligible for military service, will often voluntarily compete with young conscripted men for the available positions. These young women will be selected ahead of the conscripted men whenever outscoring them on the selection criteria.
The Danish Defence forces consist of approximately 15000 regular members and 12000 reservists. There are additionally over 50 000 reserve volunteers available for service in the Home Guard. The Danish Defence forces are regularly committed to international operations.
The average number of sanctions imposed through court proceedings under the Military Penal Code (excluding the civilian criminal code and other legislation) over the past five year is 218.
5.2.7.2 The Danish Court Martial System
5.2.7.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
Military criminal cases are heard by the ordinary courts, presided over in most cases by either a single civilian professional judge or a civilian professional judge with two lay civilian judges.
In peace time, military criminal jurisdiction applies to military members on active service, and in some cases military members after they are discharged. In armed conflict, whether inside or outside of Denmark, military criminal jurisdiction may extend to all members of the armed forces and anyone, including civilians, accompanying a military unit.
5.2.7.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
The Danish Military Prosecution Service (MPS) is completely separate from the military chain of command. The Military Prosecutor General heads the MPS, and is responsible directly to the Minister of Defence. The Chief Military Prosecutor works under the Military Prosecutor General, and supervises ongoing investigations and prosecutions.
Though a member of the armed forces with military status, the Military Prosecutor General holds no military rank (although he has a separate insignia corresponding to the military rank of a Major General) and is correspondingly not subordinate to any military officer. The same is true for all prosecutors, and investigators, employed within the MPS. When they are prosecuting cases in Denmark, prosecutors do not wear military uniforms and have their offices located outside of military bases.
The MPS is responsible for both investigating and prosecuting violations of the Military Penal Code, as well as civilian criminal laws related to military service. They are capable of conducting investigations both in Denmark, and abroad in theatres of operations. There are currently 5 military prosecutors’ positions in Denmark.
5.2.7.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
All defence counsel in Denmark are civilian. An accused person’s defence will normally be funded by either their representative association (which is somewhat akin to a labour union), or by the government upon the judicial assignment of defence counsel from a roster.
If the accused is judicially assigned state-funded counsel, and is acquitted, then he or she will not have to make any financial contribution to the cost of his or her defence. However, if convicted, the offender must pay the full cost of his or her legal defence (based upon standard rates/tariffs for their kind of case). The judiciary determines the reasonableness of defence counsel fees.
5.2.7.2.4 The substantive body of service offences
The Danish military justice system has completely separate minor disciplinary infractions, which are triable before military commanders, as distinct from military crimes, which are contained in the Military Penal Code and triable only in the ordinary courts.
The Military Penal Code contains a variety of service-related offences. The MPS can also prosecute military members for civilian offences where the subject matter of the offence falls within statutorily enumerated grounds (generally, where the circumstances are substantially connected with military service).
5.2.7.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
There is no difference in the sentences available to the ordinary courts in Denmark when dealing with a military case. Courts will determine the appropriate sentence of an offender based on civilian sentencing guidelines. The sentences of imprisonment, fines, and alternative sanctions (e.g.: community service orders) are all available, depending upon the offence. The ordinary courts also have the power to order offenders to compensate victims, and/or to surrender any proceeds of crime.
There are no special military punishments available to the ordinary courts, but the military chain of command retains their authority to discipline, administratively sanction, or discharge military offenders.
5.2.7.2.6 The laws of evidence that apply at trials in respect of service offences
The ordinary Danish law of evidence applies to military prosecutions.
5.2.7.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
The ordinary Danish law applicable to appeals applies to military cases. Serious offences generally carry an automatic right of appeal, and minor cases require leave to appeal. Further appeals to the Supreme Court require leave, and must be on questions of law alone.
5.2.7.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.
Danish courts have a guideline, established by the executive branch of government, which requires a trial in respect of a violent offence to be commenced within 37 days of charges being laid.
Any decision of the Chief Military Prosecutor not to prosecute in a particular case may be appealed by the victim to the Military Prosecutor General.
5.2.7.3 Observations on the Danish Court Martial System
First, Danish interlocutors reported significant benefits to the Danish military justice structure, comprising complete severance between their non-penal, summary discipline system, administered by the chain of command, and their military penal system, which is investigated and prosecuted by the military prosecution service before the ordinary civil courts. The CMCRT heard that the discipline system was working well for commanders, and that there was rarely doubt as to whether a particular matter was more appropriately dealt with as a matter of summary discipline, or as a true crime. Whenever there was such doubt, it would result in immediate consultation with a military prosecutor. This total severance allowed for speedy, fair discipline on the majority of matters of concern to commanders, who did not express the need for a system where they could impose penal sanctions at their level in the current operational environment.
It was reported to the CMCRT that it would not be acceptable to have prosecutors holding a military rank in Denmark for legal policy reasons relating to the perceived independence of the prosecutors. The CMCRT was informed of the benefits enjoyed by members of the military prosecution service (including both prosecutors and investigators who work directly under the supervision of prosecutors), in having military status but no military rank. The CMCRT assessed that this attribute would be an asset to ensure objective independence in their investigatory and prosecutorial tasks, since it would not be reasonable to perceive rank-less individuals as being subordinate to, or under the influence of, the normal military chain of command. The CMCRT heard that this allowed the most junior investigator and prosecutor to cross-examine freely the most senior of officers. Maintaining membership in the armed forces, however, allows for investigators and, if necessary, prosecutors, to enter theatres of hostilities as combatants.
A benefit of a rank-less prosecution and investigative service was particularly standing out to the CMCRT in the case of the Military Prosecutor General, who, like the heads of civilian prosecution agencies, is responsible directly to a government minister, and not to leaders of the armed forces. Furthermore, where the Military Prosecutor General is responsible to the Minister of Defence, rather than the Minister of Justice (or Attorney General), he is presumably empowered to maintain sensitivities to the needs of military discipline and the realities of service life. The CMCRT heard that armed forces members are aware that the prosecution service is outside of the chain of command, and they had confidence in its fairness and objectivity in that regard.
The CMCRT did observe, however, that the Danish military prosecution service can occasionally face some internal legitimacy challenges due to their perceived separation from the ordinary forces. Occasionally, individual prosecutorial decisions and files may been seen by operational members of the armed forces as being detached from the realities of modern armed conflict.
Similarly, the CMCRT perceived certain advantages in the Danish system of relying on ordinary civil courts to try military penal offences. The team heard that this practice has resulted in a high level of perceived internal legitimacy in the Danish armed forces, as members know they will be treated the same as any other Danish citizen should they face a criminal trial.
The CMCRT did observe one potential theoretical disadvantage, in that the ordinary Danish courts are not currently capable of sitting abroad. However, the CMCRT did not obtain any indication that this has ever actually resulted in a problem in the Danish military justice system, particularly since there are clear examples of prosecutions and trials proceeding effectively in the ordinary Danish courts in respect of operational offences that took place during armed conflicts outside of Denmark (such as in Afghanistan). In such cases, the Danish Courts would make significant use of technology (e.g. to have witnesses testify from abroad).
Regarding sentences available in military cases, the CMCRT was informed that Danish judges were satisfied with having the same sentencing options available as in the civilian justice system. They perceived particularly military sentences as inappropriate in the criminal justice system, as these were and should only be the domain of Commanding Officers.
5.2.8.1 Technical Visit
On 7 October 2016, two members of the CMCRT met with representatives from the Finnish Office of the Prosecutor General, including the State Prosecutor and one of his District Prosecutors; representatives from the Defence Forces, including the Head of Legal Division of the Defence Staff, the Legal Advisor to the Officer in Charge of Criminal Investigations, and a military “Judicial Officer”;27 and, finally, the Chief Justice of the Helsinki Court of Appeal together with several justices of the military division of that court, including two military officers who are lay judges of the Helsinki Court of Appeal.
Like Norway and Denmark, Finland employs universal conscription for its male population. The Finnish Defence Forces consist of approximately 8000 regular force members alongside about 25000 conscripts, with approximately 900 000 reserve personnel available for service. Finland regularly deploys its regular force members on international operations.
The number of military cases roughly vary from 300 cases to 500 cases per year. The vast majority of the cases relate to absence and desertion.
5.2.8.2 The Finnish Court Martial System
5.2.8.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
Military criminal cases are dealt with in courts of general jurisdiction in accordance with the procedure provided for normal civilian criminal cases. Fifteen out of twenty-seven district courts deal with such military cases. The composition of the district court is different for military cases, where the court consists of a chairperson (a civilian judge) and two non-legally trained military members. Military cases must be dealt with as a matter of urgency.
The Court of Appeal appoints the military members based on nominations by the Commander of the Finnish Army, for a period of two years. Whenever a military member is not required to sit in court, he or she will resume his or her normal duties. A military member has the right, in return for his or her duties, to collect from State funds a fee for each session day, as well as a per diem and compensation for travel expenses in accordance with the grounds approved by the Ministry of Justice. Before undertaking their duties in court, military members swear an oath as a judge. Military members are functionally equivalent to regular judges, and therefore they exercise independent consideration in their decision-making, and their actions may not be monitored any more than in the case of regular judges.
The Finnish military justice system only has jurisdiction over military personnel and those performing their military service. However, there is an exception in times of peace such that, if a male citizen does not enter compulsory military service, he will be tried for his absence (AWOL) in the military version of civilian court, even though he is still a civilian.
For military offences committed abroad, the only court of competent jurisdiction is the District Court of Helsinki. In these cases, the court can conduct sessions abroad.
If a state of defence has been enacted, then military courts can also try non-military officials of the armed forces, persons other than soldiers serving in military forces, people serving in public entities, or traffic or communication officials, if they have been set under military command.
5.2.8.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
The Prosecutor General has assigned, out of 300 civilian prosecutors, 40 of them from across the country to deal with military offences, in addition to their caseload of civilian criminal cases. A prosecutor normal caseload is of approximately 200 cases per year and only a small portion of these are military cases. If they are required to, prosecutors can conduct prosecutions abroad. With military cases, the prosecutors’ discretion to prosecute is more restricted than with regular criminal cases: any decision not to prosecute cannot be based on the minor significance of the offence.
The Finnish Prosecution Service in an independent organization, which exists as a branch within the Ministry of Justice. The Defence Forces fall under the Ministry of Defence and do not have any functional or administrative connection to the Prosecution Service.
Largely due to universal conscription, a high percentage of Finnish prosecutors have at least some military service. Those individuals designated as military prosecutors are eligible for periodic familiarization and training sessions at local military establishments in order to reacquaint the prosecutors with the realities of service life.
5.2.8.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
In military cases, contrary to civilian cases, every accused is entitled to his or her defence being paid at public expense. There is no means-related threshold an accused has to meet to have his or her defence fees covered. The defending lawyer cannot be a member of the Defence Forces.
5.2.8.2.4 The substantive body of service offences
In peacetime, military-configured courts hear both military offences, such as absence without leave and disobeying an order, and civilian offences, like theft and assault, provided that the accused person is a soldier and the offence was directed against another soldier or the Defence Forces. For all other criminal offences, the district court will sit in the regular, non-military configuration.
In wartime, separate military courts can be established to deal with all criminal cases relating to soldiers.
5.2.8.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The same sentencing regime applies equally to civilians as well as soldiers.
5.2.8.2.6 The laws of evidence that apply at trials in respect of service offences
There is no notable specialization in the rules of evidence for military cases.
5.2.8.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
Appeals of the judgment of the district court are heard by the Helsinki Court of Appeal. Leave to appeal is required in most military cases.
The Helsinki Court of Appeal also functions as the court of first instance if the accused person is an officer of or above the rank of major, or someone who serves in a corresponding military position.
Appeals from decisions of the Helsinki Court of Appeal are heard by the Supreme Court of Finland. Leave to appeal is required in military cases unless the Court of Appeal hears a military case in the first instance.
The regular composition of the different appeal courts is supplemented by two lay military members in the Court of Appeal, and in the Supreme Court. Whenever a military member is not required to sit in court, he or she will resume his or her normal duties.
The Supreme Court appoints, from among persons proposed by the Ministry of Defence, the military members of the Court of Appeal. The President of the Republic appoints the military members of the Supreme Court.
5.2.8.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
In Finland, military cases must be dealt with as a matter of priority by prosecutors.
5.2.8.3 Observations on the Finnish Court Martial System
Even though Finland relies on ordinary civilian prosecutors and ordinary courts to deal with its military offences – there is still a fairly significant degree of specialization in military cases. This specialization is created in part because serving military members are employed as lay judges, both at trial and on appeal, in military cases. These legally independent officers can be thought of as ensuring that military knowledge is present in the tribunal, both in making findings of fact and at sentencing. It was reported to the CMCRT that the military knowledge and community experience brought by the military members of the tribunal was very beneficial to the process. The CMCRT heard that military members brought legitimacy to the system in to the eyes of the accused. As well, the reliability of the military members is regarded as being very high in Finland; the findings and sentences they reached are very similar to civilian courts.
The CMCRT did hear about some potential risks relating to this aspect of the Finnish system. For example, the CMCRT heard some suggestion that employing non-professional judges increases the risk that a tribunal may be perceived as relying on facts not in evidence to reach findings of guilt or at sentencing. The CMCRT also heard how this potential risk can be offset by the strong presumption that judicial actors act appropriately and according to law, and how it might in any case be significantly mitigated simply by the presence on the tribunal of the professional civilian judge. However, some interlocutors wondered whether it was really necessary to have military members sit as judges in military cases. They suggested that expert evidence could provide the required information to professional judges, which could be perceived as more transparent. The CMCRT also heard that military members of the court sometimes do not have the specific military expertise or knowledge pertinent to the case before them (e.g. a case involving an air force accident, but where there is no military member familiar with airfield operations on the panel).
The military members of the courts (who are independent in the conduct of their judicial duties during their fixed term of their appointments to the courts) also retain their normal military duties on a day-to-day basis, except when required by the court to sit in a particular case. While the CMCRT observed that such an arranged might, under Canadian constitutional law, raise questions concerning the objective independence of such “part-time” military judges, the CMCRT was informed that this particular arrangement was likely a practical necessity given the small size of Finland’s regular armed forces, especially with respect to the officer corps.
Although the District Court of Helsinki can conduct sessions abroad, this appears to happen very rarely, as it is more convenient do conduct sessions in Finland. Nonetheless, the CMCRT heard that there has never been any problem in finding a civilian judge to sit abroad. According to one judge the CMCRT met, this is part of their judicial duties.
Finally, the CMCRT heard that COs tend to find that sentences are too low and that the process is too slow (thereby creating problems when members are required to deploy).
5.2.9.1 Technical Visit
From 7-9 November 2016, two members of the CMCRT conducted an in-person technical visit to France, where they engaged in face-to-face meetings with the following individuals:
- military Magistrate officers, military judicial clerk (“greffier”) officers, and senior non-commissioned members, all from the Ministry of Defence’s Military Penal Affairs Division;
- senior officers from the Gendarmerie prévôtale (the national military police force);
- civilian prosecutorial Magistrates specialized in military matters;
- civilian presiding Magistrates specialized in military matters;
- military staff officers representing the Chief of the Defence Staff; and,
- the Director of the Ministry of Defence’s Office of Legal Affairs.
The French armed forces consist of approximately 208,000 regular members, 98,000 members of the Gendarmerie nationale (a national paramilitary police force that includes a number of specialized sub-components), and 28,000 reservists. France participates actively in a number of foreign and international operational deployments, and has well over 10,000 personnel operating outside of the country at any given time – largely in Africa and the Middle East. Conscription was abolished in France in 2001.
5.2.9.2 The French Court Martial System
5.2.9.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
There are two distinct systems for dealing with military offences under French law: a system that is, in principle, intended for use in peacetime; and, a system that is, in principle, intended for activation during times of crisis and in wartime.
Within the peacetime system, three distinct jurisdictional possibilities exist for dealing with offences committed by military personnel. First, purely civilian offences that are committed outside of the context of military service are dealt with in one of France’s thirty-two ordinary civilian court districts (“jurisdiction de droit commun”). Second, both uniquely military offences and civilian offences that are committed in the context of military service, in France (other than in the Paris region), are dealt with in one of France’s eight regional civilian jurisdictions that have specialization in military matters (“jurisdiction de droit commun spécialisée en matière militaire”). Finally, any uniquely military offences and civilian offences that are committed in the context of military service, either within the Paris region or on operations outside of France, are dealt with in the Paris district jurisdiction that has specialization in military matters (“jurisdiction de droit commun spécialisée en matière militaire de Paris”). The courts will not conduct sessions abroad.
In all of these three classes of situations, less serious matters are tried by the High Court (“tribunal de grande instance”) , and more serious matters are tried by the Assize Court (“cour d’assises”). Unlike in in the ordinary civilian court districts, the Assize Court in civilian jurisdictions with specialization in military matters sits without a jury.
Also, in civilian jurisdictions with specialization in military matters, the presiding magistrates who are specialized in dealing with military cases are assisted by military judicial clerks (“greffiers”) who are officers and non-commissioned members. These clerks are career military members who receive legal or paralegal training, and perform auxiliary judicial functions by assisting the presiding magistrates in, among other things, understanding the military aspects of a particular case. In general, the number of military files that a specialized presiding magistrate will deal with represents only a small portion of the total number of files that form part of that magistrate’s docket
In times of war or siege, French law permits the re-establishment by executive order of military tribunals. These tribunals would have different jurisdiction depending on whether an offence is committed within France (in which case either the Territorial Court of Armed Forces or the High Court of the Armed Forces would have jurisdiction) or abroad (in which case, the Armed Forces’ Military Court would have jurisdiction). All of these tribunals would be composed of combinations of military officers and at least one civilian judge, and would have jurisdiction to deal with all offences committed by military personnel – whether in the context of military service or otherwise.
5.2.9.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
As with the court/tribunal system in France, three distinct prosecution service possibilities exist for dealing with offences committed by military personnel. First, purely civilian offences that are committed outside of the context of military service will be dealt with by prosecutors (“magistrats du parquet”) in any one of France’s 164 ordinary civilian prosecutorial districts. Second, both uniquely military offences and civilian offences that are committed in the context of military service, in France (other than in the Paris region), will be dealt with by civilian prosecutors from the prosecutorial district offices in one of France’s eight regional civilian jurisdictions that have specialization in military matters. Finally, a specialized section of the Paris prosecutor’s office was set up in 2012 to deal with any uniquely military offences and civilian offences that are committed in the context of military service, either within the Paris region or on operations outside of France.
In the Paris specialized prosecution office, two prosecuting magistrates work full-time on military cases. In the remaining eight regional offices that form part of jurisdictions with specialization in military matters, military cases make up only a small percentage of the total caseload of the prosecuting magistrates, who also deal with purely civilian prosecutions as part of their day-to-day work.
In both the Paris specialized prosecution office and the eight other regional offices that form part of jurisdictions with specialization in military matters, the prosecuting magistrates are assisted by military judicial clerks (“greffiers”) who, among other things, bring a level of military knowledge and experience to the prosecutor’s office.
In all of the French jurisdictions, the prosecuting magistrates are completely independent from the normal military chain of command.
Unlike in the ordinary civilian jurisdictions, the Minister of Defence must provide input to these civilian prosecutors about each military case before the prosecutors can make their decision to proceed or not proceed with a trial of a military member. This input – most commonly provided by officials from within the armed forces on behalf of the Minister of Defence – is intended to inform the prosecuting magistrates of the military interest in the case, by noting factors such as past conduct of the accused, other pending career action, and any non-criminal disciplinary punishment that has been imposed.
5.2.9.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
In peacetime, a military accused person will be entitled to representation by a lawyer or a military member who is not necessarily trained as a lawyer. The costs of securing a lawyer will be provided out of public funds if the offence that the accused is charged with committing is one that arises from military circumstances, and not from purely personal circumstances.
In wartime, inside France, accused persons will also be entitled to representation by a lawyer or a military member. Outside of France, accused persons may also be represented by a defending officer who is named on a roster established for special military justice service.
5.2.9.2.4 The substantive body of service offences
The French Penal Code contains all civilian offences, while the Code of Military Justice creates uniquely military offences, such as desertion, military conspiracy, and disobedience of an order. Unless the military tribunals are re-established by executive order, these uniquely military offences would always be tried within a civilian jurisdictions that has specialization in military matters.
5.2.9.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
Generally speaking, tribunals that deal with military offences impose all of the same sentences as a purely civilian tribunal. These sentences are imposed in conformity with principles of sentencing that apply across both the specialized military and civilian criminal justice systems. However, a tribunal dealing with a military offence can additionally impose punishments of reduction in rank, and a form of dismissal with disgrace (“la destitution”), which can have severe implications on an offender’s pension entitlements and right to wear insignia, among other things.
5.2.9.2.6 The laws of evidence that apply at trials in respect of service offences
There are no specialized rules of evidence that apply at trials in respect of military offences.
5.2.9.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
In peacetime, no distinct appeal process exists for dealing with military offences, as compared to appeals from decisions in respect of ordinary civilian criminal offences.
In wartime, a distinct appeal process from an initial decision of a military tribunal would exist. The first instance decision would be reviewed by them same military tribunal that rendered the decision – but by a differently composed panel of that tribunal. Alternately, if this review is impossible, then the decision can be reviewed by a court that is designated for that purpose by the Criminal Chamber of the Court of Cassation. Final decisions by the military tribunals can be appealed to the Court of Cassation under limited circumstances.
5.2.9.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
No unique rules of procedure or substance for dealing with military offences were noted regarding particular groups with special needs.
5.2.9.3 Observations on the French Court Martial System
A specialized form of justice for dealing with military offences continues to exist in France, notwithstanding claims that military justice has been abolished in that country.28 Although members of the armed forces are not directly involved in the prosecution or adjudication of military offences, they continue to have indirect involvement in or influence upon these matters (e.g.: through the military “greffiers” who work in the offices of prosecuting and presiding magistrates, and through the requirement for prosecutors to obtain input from the Minister of Defence in any decision to prosecute a military offence). Furthermore, military accused persons remain subject to some different procedures (e.g.: they are not tried by a jury at the Court of Assizes), and military offenders are liable to be sentenced with some different punishments (e.g.: reduction in rank). Based on these differences, the CMCRT is of the view that it would be misleading to claim that “there is but one justice in France: one is a French citizen before being a soldier.”29 Military personnel in France are subjected to a form of criminal justice that is somewhat different from the form of justice that applies to ordinary citizens.
Second, the CMCRT was informed that differences in procedure or structures between the normal civilian criminal jurisdictions and the jurisdictions with specialization in military matters were generally intended to ensure that adequate military knowledge was available to decision-makers in the latter jurisdiction. This military knowledge was contributed to varying degrees by the “greffiers” who worked with prosecutorial and presiding magistrates, by the subject-matter specialization that key actors in the nine specialized jurisdictions would gain over time by dealing with military files (particularly in the Paris region, where prosecuting magistrates worked full-time on military cases), and by the requirement for prosecutors to seek input from the Minister of Defence regarding the military interest in, and circumstances surrounding, the case. Generally speaking, it seemed that these measures were effective in providing for sufficient military knowledge, although members of the military chain of command would sometimes find that other civilian actors within the justice system lacked a comprehensive understanding of certain military issues in particular cases.
Third, the CMCRT was informed that there were clear efficiency benefits associated using experienced civilian prosecuting magistrates to deal with military offences. For instance, in the Paris regional prosecutions office, there were two prosecuting magistrates with specialization in military matters who dealt with all files from the Paris region involving uniquely military offences and civilian offences committed in the context of military service, and all files from outside of France involving any offences by military personnel. Between them, these two prosecuting magistrates dealt with approximately 800 files per year (this includes to some extent the supervision of police investigations). Of these 800 files, some are classified as ‘without further action’, others are dealt with alternative means to prosecution others are referred to the investigating judge for further investigation, and approximately 100 of such files are brought to trial. In the remainder of the cases that do not go to trial, the prosecutors may decide not to proceed with the charges outright, or (like their colleagues within the purely civilian system), they may decide to dispose of the file through consent-based alternatives to prosecution (similar to “alternative measures” in Canada), by requiring an accused person to complete mediation, to undergo therapy, or to remain subject to certain conditions.
Fourth, there did not appear to be any major practical or legal difficulties associated with having civilian judges dealing with offences that take place outside of France even if they do not conduct courts martial abroad. For instance, in cases where a judicial magistrate (“juge d’instruction”) was assigned to supervise an investigation (as is common procedure in many civil law jurisdictions for investigations of more serious or complex cases), the magistrates would make themselves available by phone or other means to police investigators anywhere in the world, and would travel to the location of an offence that was being investigated if necessary. The CMCRT heard that the belief that courts martial needed to be able to deploy was considered “out of date” (“hors du temps”) given the extent of force protection resources that would be needed to provide for the safety of the Court, and given the distraction from mission focus that a trial could represent.
Finally, as a matter of practice, significant cooperation and liaison takes place between the Ministry of Defence and the various magistrates who are specialized in military matters. To begin with, several of these magistrates are assigned to positions within the armed forces, where – for the duration of their assignments – they wear unique ranks like “Magistrat Colonel” or “Magistrat Lieutenant-Colonel”. Upon being posted back into a civilian magistrate position, these individuals lose their ranks and cease to be considered part of the armed forces. The military magistrate officers act as form of bridge between the armed forces (on the one hand) and the prosecuting and presiding magistrates within the specialized civilian jurisdictions that deal with military offences (on the other hand). The military magistrate officers also facilitate opportunities for exposure to military operations and training among the civilian magistrates. It was clear that from the perspectives of both the operational military chain of command and the specialized civilian magistrates that the military magistrate officers were an essential component of the overall system for dealing with military offences in France.
5.2.10.1.1 Technical Visit
From 10-11 November 2016, two members of the CMCRT conducted an in-person technical visit to the Netherlands, where they engaged in face-to-face meetings with the following individuals:
- the Director General of the Dutch Military Legal Service, and several Headquarters legal staff officers;
- a senior civilian Legal Advisor from within the Dutch Ministry of Defence;
- Two civilian prosecutors from the District Public Prosecutor’s office at Arnhem, who form part of that office’s “Division of Military Affairs” and who specialize full-time in the prosecution of military offences;
- The senior Military Liaison Officer who is embedded in Division of Military Affairs at the Public Prosecutor’s office;
- The Marechaussee (Military Police) Liaison Officer who is embedded in Division of Military Affairs at the Public Prosecutor’s office;
- A current and former civilian legal advisor within the Expertise Centre for Military Law that is embedded in Division of Military Affairs at the Public Prosecutor’s office;
- A civilian prosecutor within the office of the Advocate General (who is responsible for appeals in both civilian and military cases);
- A military member (judge) of the Military Chamber of the District Court at Arnhem; and,
- The civilian judge who is President of the Military Chamber of the Appeal Court at Arnhem and the civilian judge who is the President of the Military Chamber of the District Court at Arnhem.
The Dutch armed forces consist of approximately 45,000 regular members, and another 32,000 reserve members. Within the regular force, the Army accounts for about 20,000 members, the Navy (and Marines) account for about 12,000 members, and the Air Force accounts for about 7,000 members. The Marechaussee (a national para-military police force) accounts for about 6,000 members, but most of these members perform border security functions, with only about 600 employed in traditional military policing functions. The Dutch armed forces participate actively in multi-national training exercises and operations, and presently has approximately 1300 personnel deployed on operations (mostly in Africa and the Middle East).
5.2.10.2 The Dutch Court Martial System
5.2.10.2.1 The status and institutional structure of tribunals/courts with jurisdiction over service offences
In the Netherlands, all crimes by military personnel will be dealt with by the Military Chamber of the (civilian) District Court at Arnhem, and all appeals will be heard by the Military Chamber of the (civilian) Court of Appeal for the Arnhem district.
In any given case, the Military Chamber of the District Court would either be composed of a civilian judge or two civilian judges and one military member. The Military Chamber of the Court of Appeal would be composed of two civilian judges and one military member. There are three military members at each of the District Court and Court of Appeal (generally, one from each of the Army, Navy, and Air Force, at the rank of Colonel for the District Court, and at the rank of Brigadier-General for the Court of Appeal), and as many as 40 civilian judges, who could all be called upon on a rotational basis to make up a Military Chamber for a particular trial.
Military members are qualified military lawyers. There are some specific rules to guarantee their independence from command influence, in addition to granting them the same legal status and protections as judges. Military members are appointed by royal decree upon recommendation of the Minister of Security and Justice and with the consent of the Minister of Defence, for a period of four years. These judges may be renewed for up to two additional four-year terms. Military members are also appointed as Deputy Judges of the District Court or Court of Appeal (as the case may be), with all of the same pre-requisite training and certification as civilian judges, so they can also sit as civilian judges in non-military cases.
In practice, military members at the District Court-level divide their time between acting as judges (i.e.: the military member of a Military Chamber) in military cases, acting as Deputy Judges in civilian cases, instructing members of the armed forces in military law at the Netherlands Defence Academy, facilitating working visits of the entire military chamber to military units, exercises or missions. Military members at the Court of Appeal-level are generally only needed to preside in military appeals for approximately one day per month. They may also preside in civilian appeals (although this is less common), and they also serve in full-time senior military legal positions within the armed forces when not presiding.
The jurisdiction of the military chamber, which can conduct sessions abroad, is limited to military personnel: regular force members, volunteers, conscripts (although conscription has been suspended since 1996), reservists (when they are actually serving), and in very limited circumstances, certain civilians.
In the Military Chamber of the District Court, simple cases will be tried before a single civilian judge. More complex cases, and cases in which the prosecution seeks imprisonment of more than one year, will be tried by the full Military Chamber consisting of a professional civilian judge as President, a second civilian judge, and a military member. Decisions will be taken by majority vote, but the Chamber will only express a single decision and will not indicate when there was a dissenting vote during the secret deliberations of the judges. As noted by Major Bas van Hoek, “[o]n average, 10 per cent of the cases are tried by the multiple member military chamber and 60 per cent by a single-judge military chamber. The remainder of matters are minor offences.”30
5.2.10.2.2 The status and institutional structure of a prosecution service with responsibility for prosecuting service offences
The task of supervising the investigation and prosecution of criminal offences committed by members of the Dutch armed forces, falls to the Arnhem District Public Prosecution Office’s Division of Military Affairs. This specialized Division of the civilian prosecution service currently consists of two civilian public prosecutors, three clerks, two civilian legal advisors from the Expertise Centre for Military Criminal Law (“the Centre”), two Liaison Officers of the Armed Forces, and a Liaison Officer of the Royal Netherlands Marechaussee (police).
The Division’s prosecutors are civilian lawyers who, due to the relatively small number of military cases, also handle cases involving offences committed by civilians in addition to military cases. As noted by Major Bas van Hoek, “[t]he public prosecutors built their expertise by daily practice, attending military legal courses and briefings by military units and by visiting units during deployments.”31 If they have to, civilian prosecutors can deploy to theatre of operations, although this happens very rarely.32 Most often, they will direct cases from the Netherlands (this happened in cases where the alleged offence was committed in Afghanistan, Mali and Iraq).
The role of the Centre, which was established in 2007, is to provide military operational legal support to the public prosecutor. The legal advisors working at the Centre must be civilians with relevant operational legal experience (i.e.: mission experience as a military legal advisor). Both the prosecutors and the Centre’s legal advisors are fully independent from the military chain of command, and are not responsible to the Ministry of Defence.
The role of the Liaison Officers is to facilitate the communication between both the public prosecution service and the Ministry of Defence, by assisting the public prosecutor on matters of military organization, operating procedures and the specific relevant military rules and regulations.
In spite of the different sources of information and support that are available to the public prosecutors, including from military Liaison Officers within the Division, the decision to prosecute rests exclusively with the public prosecutor, who makes this decision independently.
5.2.10.2.3 The mechanism through which defence counsel services are provided to persons accused of committing service offences
An accused person who is held in provisional custody or detention on remand may retain legal counsel at the public expense.
An accused person who is not in such custody or detention can access legal aid if the person does not have sufficient funds to retain the services of legal counsel. The paying of a small fee in the form of contribution is required, depending on the accused person’s income.
The accused person can also be assisted by any military officer who is willing to defend him and who will act as a free representative. No legal background is required in this case, as the military defending officer is not expected to give thorough legal advice or support. The defending officer’s task is to assist the accused in relatively simple cases, and to provide the court with specific military aspects that are relevant in relation to the behavior of the accused and the military crime.
Practically speaking, an arrangement was passed which provides that the Ministry of Defence could provide under limited conditions compensation for defence counsel.
5.2.10.2.4 The substantive body of service offences
Both the common Criminal Code and the Military Criminal Code (which contains a relatively small complimentary legal regime) apply to all military personnel. The Military Criminal Code defines a number of military crimes, such as absence without leave and disobeying an order or service regulations.
The Military Chamber will normally deal with military and ordinary civilian crimes committed by military personnel.
As noted by Major Bas van Hoek, “there has been a reduction in the number of military criminal cases in general, and cases concerning typical military offences in particular. Most cases relate to offences against civilian criminal law committed by service members while they are not on active duty and which lack any military quality or connection. These offences have little or no direct bearing on the armed forces.”33
A certain threshold must be met for the misconduct to be considered criminal (otherwise the misconduct will only be subject to disciplinary law). The test to distinguish between military crimes and disciplinary offences is as follows: if as a direct and immediate result there is damage or it is feared there will be damage to the readiness for the actual carrying out of an operation or exercise of any unit of the armed forces, or if a threat to another person’s life is to be feared or caused, or if general danger to goods is to be feared or caused, then the matter should be treated as a criminal offence.
5.2.10.2.5 The punishments, sanctions, and sentencing laws that apply in respect of service offences
The Military Chamber applies the sentencing regime that exists in the civilian justice system as well as the one that exists in military criminal law (e.g. military imprisonment). However, during wartime, the maximum penalty which can be imposed is higher for numerous military crimes.
5.2.10.2.6 The laws of evidence that apply at trials in respect of service offences
The law of evidence in the Military Chamber is the same as in civilian courts. There is no notable specialization in the rules of evidence for military cases.
5.2.10.2.7 The rights, grounds, and mechanisms of appeal for the prosecution and defence
There is no notable specialization in the rules regarding rights, grounds and mechanisms of appeal for military cases in the Netherlands, except that the Military Chamber of the Court of Appeal for the Arnhem district is the exclusive Appeal Court in respect military appeals, and complaints by a victim of a decision to prosecute or not prosecute made by a public prosecutor in the Division of Military Affairs. The Military Chamber of the Court of Appeal and is composed of two civilian judges and one military member.
The Supreme Court of the Netherlands, which can hear final appeals in military matters, does not have a Military Chamber.
Leave to appeal is required under many circumstances in order to appeal to the Military Chamber of the Court of Appeal from a decision of the Military Chamber of the District Court. However, in practice, the Court of Appeal tends to grant leave to appeal very generously. The Military Chamber of the Court of Appeal hears approximately 30-40 appeals each year, over the course of approximately ten court sessions each year of one half-day each.
5.2.10.2.8 Consideration of the special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders
Anyone who has a direct interest in a case may object to a decision not to prosecute by lodging a complaint with the Court of Appeal. If the Court finds the complaint to be well founded, the Public Prosecution Service must institute proceedings before the District Court.
5.2.10.3 Observations on the Dutch Court Martial System
The CMCRT was particularly interested in the structure of the Military Chamber of the trial and appeal courts, in that they blended features of civilian independence with military expertise. It is clear that the involvement of the military members within the Military Chambers of the courts permits highly productive deliberations on questions of fact and law, in a way that takes account of the special needs and circumstances of the Dutch armed forces.
As noted by Major Bas van Hoek, "[m]ost cases relate to crimes committed by service members while they are not on active duty and which lack any military quality or connection. The rationale of the military chamber and military member have not been subject of detailed discussion in the last two decades." 34 However, given the low number of cases the military members sit on (less than 10%)35, and the low number of cases involving uniquely military offences36, the CMCRT notes that some have questioned whether the existence of the military chamber is still justified.37
Military members may also be perceived as lacking the required independence38. Nonetheless, the CMCRT notes that this mixed Military Chamber concept was upheld recently on two occasions by the European Court of Human Rights as being consistent with the requirements of independence that exist under the European Convention on Human Rights,39 in part because of the legal status and protection that is granted to the military members by law.
Regarding the civilian judges sitting as judges of the military chamber, the CMCRT was informed that given their relatively small number (3 at the District Court and the 2 at the Court of Appeal) and given that they usually are part of the chamber for a couple of years40, they will generally tend to specialize and develop military expertise. Working visits to military units, exercises or missions (e.g. Mali) also contributes to the development of their military expertise.
The question of how to structure a prosecution service for dealing with military offences has been considered extensively in the Netherlands. An excellent summary of the various incidents, political responses, and structural changes that have ensued within the prosecution service is contained in Major Bas van Hoek’s recent publication, “Military Criminal Justice in the Netherlands: The ‘Civil Swing’ of the Military Judicial Order”.41 First, the CMCRT was informed that appointing service members on active duty as public prosecutors has been interpreted as contravening the requirement of independence in the Netherlands.42 The consistent challenge has thus been to balance the required civilian independence and expertise in criminal law with sufficient military knowledge and expertise. The CMCRT assessed that the current structure, with independent civilian prosecutors who are ultimately responsible for every decision to prosecute (or not) and for the conduct of each prosecution, but who have access to Military and Police Liaison Officers, and civilian legal experts on operational law within the Expertise Centre, works very effectively to achieve the correct balance. The prosecutors may not know about many facets of military life, but they can rely on their various advisors on a case-by-case basis for this.
Furthermore, this structure within the prosecution service seems to facilitate extensive cooperation between the civilian prosecutors and the military chain of command. For instance, every outgoing Dutch contingent commander meets in person with the prosecutors prior to deployment, in order to discuss and work through (or “table-top”) different disciplinary and criminal scenarios, so that all stakeholders have a common understanding of how such incidents would be addressed if they arose during a deployment. Additionally, a copy of every Dutch “use of force” incident report is sent to the Expertise Centre within the prosecution service, which provides advice to the prosecutors about when any uses of force merit further investigation or prosecution. This process for reviewing the legality of use of force incidents seems well-conceived to ensure that decisions to investigate and prosecute are made by disinterested individuals who are truly impartial in each case.
Lastly, regarding the prosecution service, the CMCRT was informed that ideally, civilian prosecutors should stay in the military division for 6-8 years to ensure that they developed the relevant military knowledge as it takes one to two years for prosecutors to deeply familiarize themselves with military law and the armed forces.
5.2.11.1 Singapore
On 20-21 September 2016, a member of the CMCRT and another legal officer from the Office of the JAG conducted an ancillary visit with the Registrar of the Military Court.
Singapore employs universal conscription of 2 years full-time service, followed by 10 years of reserve service. The Singaporean Armed Forces (SAF) total approximately 350,000 personnel. Singapore deploys on a variety of operations, including peacekeeping and anti-piracy operations. Courts martial are not held in deployed locations.
There are two types of courts martial: general courts martial and field general courts martial. Field general courts martial are held when it is impracticable to hold a general court martial as a matter of exception, and were therefore not the focus of the ancillary visit. Approximately 500 general courts martial are conducted each year.
General courts martial are held in a permanent military court where civilian judges, who each have at least 10 years’ previous experience as sitting judges, are cross-appointed to the court. It was noted by the Registrar of the Court that there is a preference for judges with criminal law and adjudication expertise.
Many of the judges are reservists - either as judges who are completing obligatory service, or as judges who remain enrolled in the reserves after their obligatory service has been completed. This type of current military experience within the judiciary in the SAF brings military expertise to the tribunal. The judges preside in uniform, and are subject to the Armed Forces Act when sitting. When not sitting as military judges, the judges perform the normal judicial duties of a state court judge. The judges are not paid additional salary or benefits when sitting as military judges.
Ordinary civilian offences, when committed by military personnel, are dealt with by courts martial that are presided over by civilian judges who sit alone. When presiding as part of a court martial involving a uniquely military offence, the judge sits as a member of a panel involving two other serving military members who generally come from operational trades and are more senior in rank. The panel collectively makes all rulings of law and fact. Questions of law are deferred to the professional judge, but on questions of fact, the military members of the panel decide the questions alongside the professional judge with each panel member having equal status. The professional judge writes the reasons for the decisions of the entire panel.
The civilian criminal rules of procedures and evidence are used within the military courts, with some modifications to better account for the need for military service knowledge.
Appeals from a court martial decision are heard by the Military Court of Appeal.
Assistance for military accused persons within the court martial system is by a “defending officer”, who is a serving military member but who is not necessarily a lawyer. Prosecutions are conducted by military lawyers.
5.2.11.2 Israel
On 30 November – 1 December 2016, a member of the CMCRT and another legal officer from the Office of the JAG conducted an ancillary visit with various actors in the Israel Defence Force (IDF) military justice system. The team met with the Chief of Defence Counsel, the Chief Military Prosecutor, and military judges.
The IDF employs universal conscription. The IDF does not deploy outside of Israel, but operates in a unique operational environment where the country is in armed conflict with several entities. Israel is also an Occupying Power.43
Military courts exercise exclusive jurisdiction over uniquely military offences and concurrent jurisdiction over ordinary criminal offences.
There are three permanent regional district courts martial, in each of the regions where military commands are located: the Southern, Northern, and Central regions. There is also a special court martial for lieutenant-colonels and above, and a traffic court martial. Courts martial are presided over by a panel of three judges: a professional judge and two lay judges – serving military members who generally come from the regional districts, and who are more senior in rank. Decisions of the court martial are taken by majority vote.
Appeals from all courts martial are heard by the Military Court of Appeals. The Military Court of Appeals sits as a panel of three judges, at least two of whom are professional judges, with the third judge being a military member who is usually a senior military commander. The professional judges are required to have formerly served in the IDF. Appeals from the Military Court of Appeals are heard by the civilian Israeli Supreme Court.
Military courts rely on the ordinary rules of criminal evidence and procedure that apply in Israel.
Prosecutors and defence counsel are military lawyers who are a part of the Military Attorney General corps. Defence counsel services are fully-funded by the military. The Military Attorney General is also the chief legal advisor to the Chief of the General Staff (the senior military commander of the IDF).
Victims’ rights in the Israeli civilian criminal justice system were implemented in 2005 through the Victims’ Rights Act and include a variety of rights related to privacy, physical protection, information, procedural rights, and the right to express a position. The Act does not formally apply in military proceedings, but has been voluntarily adopted through directives of the Chief of Military Prosecutions and the Criminal Investigative Department. There is also a Special Victims’ Counsel Program that provides emotional support and information to victims about the military justice system.
5.3 International Comparative Study – Summary of Lessons
As a result of all observations made by the CMCRT, the team was able to identify some key themes despite the diverse particularities of each court martial system that the team encountered.
First, notwithstanding the fact that that some countries resort to ordinary civil courts to try military cases while others have specific military tribunals, all countries have retained some degree of specialization in military cases. This common approach can be demonstrated in the systems that can be fairly described as the most military in character (e.g.: the United States) as well as in those that can be fairly described as the most civilian in character (e.g. France). There appeared to be adherence to the principle that in military cases, there exists a requirement to ensure that some level of military or service knowledge is brought to the tribunal, other than just through individual witnesses.
Regardless of the reason for this phenomenon, its existence cannot be reasonably denied. No country studied by the CMCRT has completely “civilianized” its court martial-type system. All of these systems retain, to one degree or another, some element of military specialization through some combination of the prosecution service, the panel, or the judiciary. All have some mechanism to ensure that military knowledge and experience informs the tribunal, other than through military witnesses. The manner in which this infusion of military knowledge is achieved varies a great deal between systems, and no country appears to have found an overwhelmingly best way to accomplish this task, but all appear to believe in its importance.
At the same time, for the actors in the court martial systems of the countries studied, criminal law expertise and trial experience seems to be more important than military knowledge and experience. Almost universally, the CMCRT heard that the prosecution service, defence counsel, and judiciary must have sufficient proficiency in criminal law and procedure in order for the court martial system to function effectively and efficiently. For many countries, this need led to the creation of some mechanism whereby court martial system actors (including trial counsel and judges) were regularly involved in ordinary criminal law matters in addition to their court martial duties, in order to develop and maintain their proficiency.
On a similar note, the CMCRT took note that simply posting or appointing a person to a court martial system position did not make that person an expert in criminal law and procedure, any more than putting a uniform on a court martial system actor granted them military knowledge or experience. The team was informed that, wherever there was no institutional mechanism in a system to ensure adequate criminal law expertise and knowledge of the realities of service life, then the effectiveness, efficiency and legitimacy of that system appeared to decline.
Furthermore, the CMCRT was informed – with perhaps only one country as an exception – a consistent recognition that a higher level of military involvement or uniformed presence within the court martial-type system created at least some challenges to the perceived legitimacy to the system. In some cases, this perception related to the ability of military prosecution or defence counsel to zealously and effectively pursue their case in situations involving higher-ranking witnesses, accused persons, or victims – where counsel might feel pressure to defer to the higher-ranking member. In some cases, the perception flowed from concerns about perceived independence (usually of the judges) from the Executive branch of government and the operational military chain of command. And, in some cases, the perception concerned initial decisions within the system (e.g.: about whether to prosecute or convene a trial) being made by a person who could be perceived to have motive to be either overzealous at the expense of a suspect or accused person (e.g.: making a junior person a scapegoat in order to protect one’s own reputation) or to be unduly lenient in ways that breed impunity (e.g.: protecting a wrongdoer who is perceived as a “good soldier”). In all of these circumstances, there was a recognition that the mere fact that a key decision-maker or justice system actor wears the same uniform as the members of the armed forces who are governed by the system can weaken the system’s effectiveness, efficiency, or legitimacy.
The CMCRT was also informed incidentally that, around the world, summary discipline systems remain the bedrock of military justice and are the preferred tools of commanders. The CMCRT clearly observed that, even in cases where countries had de-criminalized their summary discipline system and severed the relationship between summary discipline and criminal/penal law, there were no apparent negative consequences – either for the commanders imposing discipline, or for the members who were subjected to the summary discipline system. In fact, the CMCRT received significant input that suggested the opposite conclusion, indicating that a bright line between unit-level summary discipline and penal/criminal conduct enhanced perceptions of fairness from military members (so long as accused persons in a penal/criminal matter received treatment comparable to what an accused person in the civilian criminal justice system would receive), and that military commanders (who had access to a swift and simple tool to deal with the vast majority of undisciplined behaviour) were also satisfied with those summary discipline systems. The CMCRT likewise consistently heard that there was rarely difficulty in establishing whether a particular incident was penal or disciplinary in nature, and whenever there was such difficulty, it appeared quickly resolved through consultation with the relevant prosecution service.
The CMCRT noted a consistent theme that could be referred to as “parity of dealing.” In criminal and penal matters involving military personnel, the CMCRT consistently heard that perceptions of legitimacy of the relevant court martial-type system correlated with the degree of parity between the military and civilian criminal justice systems. To be clear, the CMCRT did not hear that court martial systems must be identical to, or can only be, ordinary civilian criminal courts. Rather, the CMCRT heard that, regardless of whether any particular process or tribunal was more military or civilian in character, the most important legitimacy criterion was the extent to which the main features of a system (e.g.: burden of proof; rules of evidence; judiciary; sentences) were relatable – even if not identical – to the ordinary civilian criminal justice system. Where there were high levels of comparability between the military and civilian system, then there tended to also be high levels of internally- and externally-perceived legitimacy within the military system.
Lastly, the CMCRT notes that many countries do not employ a full-time, fully-funded, military defence counsel model. When providing state-supported legal counsel to a military accused, all other nations employ some combination of means-testing, financial contribution, part-time counsel and/or certificates, tariffs, and/or judicial or quasi-judicial review of defence counsel hours and fees.
In conclusion, the CMCRT took note of all the lessons learned during its comparative study of how other like-minded states operate their court martial (or equivalent) systems. In particular, this study exposed the CMCRT to a full range of military justice considerations, structures, and practices which have informed the CMCRT in its assessment of the Canadian court martial system44 and options descriptions to improve it.45
Footnotes
1 Keeping in mind the CMCRT’s broad definition of “court martial system” (see above, Chapter 1 (Introduction)), which refers to any justice system that applies to military personnel, and can try military offences.
2 The expression ‘Judge Advocate General’ has a varied meaning throughout the world. It can refer to the senior military legal officer (e.g. Canada, United States); a judge of a Federal court or State or Territory Supreme Court in charge of civilian oversight of the operation of the armed forces (e.g. Australia); a civilian barrister or a solicitor who is also appointed the chief Chief judge Judge of the Court Martial (e.g. New Zealand and United Kingdom), the senior civilian official within the military prosecution service (e.g. Norway).
3 Solorio v United States, (1987) 107 S Ct 2924.
4 United States, Department of Defence, Report of the Response Systems to Adult Sexual Assault Crimes Panel, (Arlington, VA: US Department of Defence, 2014), online: <http://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf>; the ideas expressed by the dissenting members of the RSP were also expressed in a bill introduced by Senator Kristen Gillibrand, US, Bill S 967, Military Justice Improvement Act, 113th Cong, 2013-2014. (which would have also removed the commander’s discretion), but the bill was defeated.
5 It appears that the American Military Justice System is considering establishing a career litigation track for all uniformed military prosecutors and defence counsels. A five-year “pilot” program was established to ensure that trial counsel and defense counsel have sufficient experience and knowledge and to issue a report at the end of those five years on their findings.
6 The JAG must be, or have been, a judge of a Federal court or State or Territory Supreme Court. A defence member may be appointed as the JAG. The appointment is made by the Governor-General in Executive Council for a period not exceeding 7 years. The appointment does not affect the tenure of the holder of the judicial office.
7 All references to Australian ranks are expressed in terms of Army ranks, but should be understood to also include the equivalent Naval and Air Force ranks.
8 This does not include the Judge Advocate.
9 [2009] HCA 29.
10 Major General the Hon Justice Len Roberts-Smith, “A nettle grasped lightly: the introduction of the Australian military court” (Paper delivered at the Judicial Conference of the U.S. Court of Appeals for the Armed Forces, 17 May 2007) at 10-11.
11 Australia, Memorandum of Understanding between the Australian Directors of Public Prosecutions and Director of Military Prosecutions (Australia, 2007).
12 Ibid at paras 33-40.
13 See above, Chapter 1 (Introduction) at section 1.5. Assumption #4 reads as follows: “Any proposed reforms must be constitutional, across the full spectrum of operations.”
14 Australia, Department of Defence, Report of the Judge Advocate General for the period of 1 January to 31 December 2015 (Canberra: Judge Advocate General, 2015), at Q-3.
15 Panel members are randomly drawn from the same service and as much as possible, the same region as the accused. Potential panel members are required to fill a conflict of interest questionnaire.
16 There are about 400 reserve legal officers in Australia, around 80 of which are on the DCS panel.
17 If the accused wishes to be represented by a defender, he or she is to send a request to his or her CO in writing. The request is to state the service description and unit of the member requested. The member requested is to be released for duty as the accused’s defender if he or she is reasonably available. If the member requested is not reasonably available, the CO may invite the accused to nominate another person.
18 The Committee is made up of Chief of the Defence Force, the Vice Chief of Defence Force, the Chiefs of the Navy, Army and Air Force, the Commander Joint Forces New Zealand, the Judge Advocate General, the Director of Military Prosecutions, and a representative of the Armed Forces Defence Counsel Panel appointed by the Judge Advocate General.
19 The right of appeal to the Supreme Court is not procedurally limited. An appellant must, however, seek leave as it the case in the civilian jurisdiction usually on the basis that the appeal is of exceptional public importance. The Supreme Court can give leave to appeal directly to it against a decision of the Court Martial or Court Martial Appeal Court if it is satisfied that exceptional circumstances justify taking the proposed appeal directly to the Supreme Court.
20 These similarities are not accidental. See, for instance, Mike Madden, “Keeping Up with the Common Law O’Sullivans? The Limits of Comparative Law in a Military Justice Context” (2013) 51 Alta L Rev 125, at 127-129 (noting the mutual influences of Irish and Canadian military law on one another from 1950 to the present).
21 United Kingdom, Protocol on the Exercise of Criminal Jurisdiction in England and Wales between the Director of Service Prosecutions and the Director of Public Prosecutions and The Ministry of Defence (United Kingdom: 2011), online: <http://spa.independent.gov.uk/linkedfiles/spa/test/about_us/publication_scheme/20111007-juris_eng_and_wales.pdf>.
22 Ibid.
23 The full policy suite regarding victims’ rights in respect of prosecutorial decisions is available online: <http://spa.independent.gov.uk/test/victims_and_witnesse.htm>.
24 The late Chief Justice Lamer made similar observations in his Report of the First Independent Review Authority wherein he recommended that Canada establish a permanent military court, as did Chief Justice Lesage in his report as the Second Independent Review Authority. Some, but not all, of these capabilities can be said to exist in Canada’s current court martial system, by virtue of s 179 of the National Defence Act, RSC 1985, c N-5 [NDA].
See : Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, 2003) at 25-29. See Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011) at 37-41.
25 Though yet unknown in Canada, sentencing guidelines are well established in the UK civilian justice system.
26 It appears that the American Military Justice System is developing a career litigation stream. The United States are considering requiring the Army and Air Force JAG Corps to establish career litigation tracks for uniformed attorneys. For now, they have required the services to conduct a five-year “pilot” program to ensure that trial counsel and defense counsel have sufficient experience and knowledge and to issue a report at the end of those five years on their “findings.” See online: <http://dailysignal.com/2017/02/21/latest-case-of-jag-malpractice-shows-pressing-need-for-reform/> <http://dailysignal.com/2016/05/12/a-career-litigation-track-is-necessary-for-army-and-air-force-jags/>.
27 A military member who is not a lawyer, but whose duties involve advising a tactical commander on various legal events and processes.
28 See, for instance, Antoine Krempf, “La justice militaire n’existe plus en France ?”, Franceinfo: radio (19 June 2015), online: <http://www.francetvinfo.fr/replay-radio/le-vrai-du-faux/la-justice-militaire-nexiste-plus-en-france_1781121.html>.
29 Gilles Létourneau, “The resurrection of Napoléon's principle of equal justice” (30 April 2015), Global Military Justice Reform Blog, online: <http://globalmjreform.blogspot.ca/2015/04/the-resurrection-of-napoleons-principle.html>.
30 Major Bas van Hoek, “Military Criminal Justice in the Netherlands: The ‘Civil Swing’ of the Military Judicial Order” in Alison Duxbury and Matthew Groves, eds, Military Justice in the Modern Age (Cambridge: Cambridge UP, 2016) at 218-237, at 232 (fn 80) [van Hoek].
31 Ibid at 230.
32 For instance, two prosecutors and one clerk assisted by the liaison officer of the armed forces went to Afghanistan for two weeks in order to direct the investigations of a friendly fire incident in 2008 in Uruzgan, Afghanistan.
33 Van Hoek, supra note 30 at 232-233.
34 Ibid at 232-233.
35 Ibid at 232 (fn 80).
36 Ibid at 233.
37 See ibid at 233 (fn 81): “[d]uring an interview by the local press in March 2013 a professor in criminal law at the Radboud University in Nijmegen argued that the small amount of criminal cases concerning military offences justifies the abolition of the military chamber.”
38 Ibid at 233 (fn 81): [i]n 2011, a military member of the court saluted a military suspect in the session room. The suspect was decorated with the Military ‘Willems-Orde’, the oldest and highest military decoration in the Netherlands, for courage displayed in Afghanistan. One judge stated that the salute was inappropriate and suggested that such behaviour by military justice officials fostered public perceptions that a separate military chamber was no longer justified.
39 Jaloud v The Netherlands [GC], No. 47708/08, [2014] ECHR, at paras 195-196; Mustafic-Mujic and others v The Netherlands [Third Section], No. 49037/15, [2016] ECHR, at paras 111-114.
40 Currently, the maximum number of years a civilian judge has been sitting on the Military Chamber is three, but they are looking at adopting a policy requiring them to stay for four to five years.
41 Van Hoek, supra note 30.
42 Ibid at 235.
43 Military courts also exercise jurisdiction within the occupied territories. Those courts were not the subject of comparative study.
44 See above, Chapter 7 (Assessment).
45 See above, Chapter 7 (Assessment).
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