Courts Martial and Military law
Arrest and interview
If you are arrested by Service Police or civilian police you are entitled to free, independent, legal advice and representation at interview. If you are based overseas a legal Representative can attend an interview, via appointment, to ensure your basic and legal rights are upheld.
An investigation usually commences once an alleged offence has come to the attention of the Commanding Officer, who investigates internally, or the Service Police. The matter could have also initially been investigated by civilian police and subsequently referred to Service Police.
The circumstances of the arrest /details of an investigation must be imparted to the serviceman’s Commanding Officer and if the Commanding Officer becomes aware of an alleged serious specified offence (schedule 2 offence), they must ensure that the Service Police are informed accordingly.
Following the investigation the next stage of the process is dependent upon the offence type and seriousness. The matter will either be referred for trial by court martial or dealt with summarily.
The accused serviceman/woman has the right to elect a trial by Court Martial instead of being dealt with summarily by their Commanding Officer.
Summary proceedings before the Commanding Officer
For less serious offences there will be a summary hearing conducted before the Commanding Officer. Although often likened to a mini court trial, it is a non-judicial procedure whereby the Commanding Officer will conduct a fact-finding exercise; gathering evidence and questioning the accused/witnesses. The commanding officer’s powers of sentencing are limited but an application can be made to extend such powers if they are deemed insufficient to deal with the alleged offence.
The effect of a summary hearing should not be underestimated as the consequences can be serious; a guilty verdict at a summary hearing can amount to a recordable offence, which will inevitably have a negative effect upon the serviceman/woman’s career progression within the military.
Although a crucial stage in the process, there is no right to legal representation at a summary hearing and therefore no legal aid funding available for the same. However, you can obtain legal advice prior to the hearing which will need to be funded on a private basis.
The accused may appoint an Assisting Officer to represent them at the hearing, subject to the chosen officer satisfying certain conditions.
An accused serviceman/woman will stand trial by Court Martial via a Service Prosecuting Authority referral or if the serviceman/woman has elected trial by Court Martial.
If the serviceman/woman elects Court Martial, the sentence passed can not go beyond the commanding officers sentencing powers, as if the matter was dealt with summarily.
For a typical Court Martial trial there will be a Judge Advocate and a board, similar to a jury in civilian courts, consisting of Lay Members; the board is comprised of warrant officers and commissioned officers. The prosecutor representing the military will be a service lawyer/advocate.
Servicemen/women subject to Court Martial proceedings are entitled to be defended by a civilian legal team of their choice.
Following a summary hearing the serviceman/woman has an automatic right to appeal the outcome to the Summary Appeal Court, for which Legal Aid funding is available. Time limits do apply; an appeal must be lodged within 14 days, starting with the date on which the sentence was given. However, leave can be authorised to extend the 14-day period. This period allows the serviceman/woman to seek independent legal advice.
Appealing a Court Martial decision will go to the Court Martial Appeal Court. However, an applicant will first need leave of the court to do so. There is a 28-day time limit for an appeal notice to be lodged after the conviction/sentence.
There is funding available for representation through the Armed Forces Legal Aid Authority (AFCLAA). Armed Forces Legal Aid is means tested and depending on your circumstances a contribution towards funding may be necessary.
Service personnel can request a lawyer of their choice to represent them and this is done by nominating the chosen lawyer/firm on the AFLAA forms.
Please contact Chloe Hingley if you need further assistance firstname.lastname@example.org