Background
The statutory framework for discipline in the armed forces
4.The three armed services operate within a statutory framework of discipline which applies wherever in the world they are based, whether in peace or in times of conflict. In effect, this means that they have their own legal system, although much of this follows the domestic law of England and Wales. The statutory basis for this system is the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, referred to collectively as the Service discipline Acts (SDAs). These Acts have a finite life, and Parliament has to be asked to renew them every five years. This is achieved by the five-yearly Armed Forces Acts, which are also used as the main vehicles for amending the SDAs. The last was the Armed Forces Act 1996.
5.The SDAs, particularly the Army Act 1955 and the Air Force Act 1955, deal both with discipline and with other matters. There is also other legislation which relates to discipline in the armed forces, such as the Courts-Martial (Appeals) Acts of 1951 and 1968 and a number of free-standing provisions in the Armed Forces Acts. Other legislation, which affects the armed forces but less directly, was also considered in the review which led to the provisions included in the Act, e.g. the Marriage Act 1949.
6.The SDAs apply at all times to full-time members of the armed forces. A table of armed forces ranks appears at the end of these notes. Parts of the SDAs also apply, in certain circumstances, to other people. Although the provisions which describe when and to whom they apply are quite complex, broadly speaking the disciplinary provisions in the SDAs apply to members of the volunteer reserve forces and to certain civilians. Officers in the reserve forces are subject to the SDAs at all times because they hold a commission. The detail of when ratings and other ranks in the reserve forces are subject to the SDAs is contained in the Acts themselves but, at it simplest level, it is when they are undergoing training or fulfilling a duty. Civilians working for or in connection with the Services outside the United Kingdom are subject to the SDAs. This will include relevant civil servants and certain contractors. A further category of civilians subject to the SDAs is members of families residing overseas with Service personnel or with civilians who are themselves subject to the SDAs. Finally, the Services retain the ability to investigate and deal with offences alleged against persons (primarily former members of the armed forces) who are no longer subject to the SDAs but who were when the alleged offence was committed.
7.Discipline can be administered either summarily by the commanding officer (or by a more senior officer, usually called an “appropriate superior authority”) or by a Service court. There are four Service courts:
A court-martial exercises an extensive jurisdiction (including jurisdiction equivalent to that of the Crown Court). Within the United Kingdom, a court-martial can only deal with cases involving Service personnel. Overseas, a court-martial can deal with cases involving anyone subject to the SDAs. A court-martial can also hear appeals against the findings or sentences of Standing Civilian Courts.
A summary appeal court is an appellate court which hears appeals against the findings or sentences of a commanding officer or appropriate superior authority who has dealt with a matter summarily.
Standing Civilian Courts operate overseas and only deal with civilians who are subject to the SDAs whilst overseas. They exist only under the Army and Air Force Acts, as dependants of Royal Navy personnel do not generally live on bases abroad. These courts are similar to magistrates’ courts.
The Courts-Martial Appeal Court hears appeals against the findings or sentences of courts-martial.
8.The Courts-Martial Appeal Court comprises civilian judges from the Court of Appeal (of England and Wales) or its Scottish or Northern Irish equivalents. Standing Civilian Courts have a magistrate, who is always a judge advocate. Courts-martial and the summary appeal court have a judge advocate, whose role is similar in most respects to that of a judge in a civil court. In Army and Air Force courts, a judge advocate is a civilian lawyer appointed by the Judge Advocate General, who is responsible to the Lord Chancellor. The Royal Navy have uniformed judge advocates (who are naval barristers of at least five years standing) appointed by the Chief Naval Judge Advocate.
9.Judicial officers carry out certain functions under the SDAs. They need to have similar minimum qualifications to a judge advocate and previously dealt only with custody hearings. The provisions in this Act will allow them to issue search warrants (section 5) and to issue warrants for the arrest of persons who may fail to comply with a summons to attend a hearing (section 25). Many judge advocates are also appointed as judicial officers.
10.The reasons for each of the provisions in the Act are explained in the section of these notes dealing with that provision. Although these notes make use of the male pronoun throughout, these references should be read as including the female pronoun.
