Discipline in the ranks

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The Independent Online
Courts martial were designed for circumstances quite different from civilian criminal law. Going into battle is an unnatural and terrifying business and military discipline is designed to ensure that the fear of failure or punishment is greater than fear of the enemy.

Until the 19th century, commanders could impose severe punishments, including flogging and death arbitrarily. Therefore, trial by court martial has traditionally been linked with the chain of command, rather than functioning as a separate judicial process. The strictest code of all was in the Navy, where ships' captains had absolute power even greater than that of their counterparts in the Army and, later, RAF.

Traditionally, even minor infractions of discipline could result in a court martial, although in the British Armed Forces nowadays minor infringements are usually dealt with by a commanding officer - a commander in the Navy, a lieutenant-colonel in the Army or wing-commander in the RAF. Where the punishment likely to be awarded is above a certain degree of severity, the CO asks the accused whether he wishes to accept his award or elect for trial by court martial.

In more serious cases, such as the murder of a Danish tour guide by British soldiers in Cyprus, civil criminal courts take charge.

A soldier charged by a court martial can nominate an officer to defend him. A civilian lawyer is likely, although in the Navy a senior naval barrister defends. However, there are no civilian representatives as part of the court martial itself. The decision can be referred to the Courts Martial Appeal Court, comprising senior civilian judges, although there is no general right of appeal.

The 1996 Armed Forces Act removes this restriction, so that all court martial decisions can be reviewed by civilian judges.

Under the reformed procedures, the role of the convening officer, criticised in yesterday's judgment, will cease to exist in its present form, while prosecuting authorities will perform a similar task to that of the Crown Prosecution Service.

Christopher Bellamy