Draft Armed Forces (Court Martial) (Amendment No. 2) Rules 2024

A recent case highlighted a risk to this overriding principle of fairness: the court administration unit initially encountered difficulties in finding a president and a board to try a case where the defendant was a senior officer, or a major general. As a senior officer, he was well known—he was connected to the system and had gone through the same career courses as many of those who were to be put on the board. His potential character witnesses included serving and retired OF-9s—so all the way to the senior levels of the military—who were also known to the pool of potential board members. It was exceptionally difficult to find and select that board/jury. By the time of the trial, however, the defendant had left the Army, so the use of civilians as members of the board was permitted. Nevertheless, that would not have been possible in law had the defendant still been serving.

Although cases involving defendants who are senior officers is rare in the UK, it is sensible to close this loophole so that the service justice system is ready and able to deal with those cases if and when they occur. The draft statutory instrument addresses this issue by amending rule 34 of the 2009 court martial rules, which sets out the requirements for the president of the board. Currently, rule 34 requires that where the defendant is rank OF-6—that is, a commodore, a brigadier or an air commodore—or above, the president of the board must be of a superior rank to the defendant. That can include the president holding the same rank as the defendant, if the president is more senior to the defendant within that rank.

The SI before us changes this requirement. Where possible, the president of the board will always be the highest appropriate ranking officer available. However, to close the loophole, if it is too difficult to find an officer of a superior rank due to a lack of impartiality, in particular, or availability, this change allows the military to broaden the pool of potential presidents. In the rarest of occasions where the defendant is the rank of OF-6—so, a brigadier—or above, we will prevent a conflict of interest by selecting a suitably qualified but completely disconnected officer with a minimum rank of OF-6. This will allow them to impartially act as the president of the board, chair the discussions during deliberations on the verdict, and ensure that all the members have an equal voice and vote—importantly, with no conflict of interest.

Every effort will still be made to find the most senior ranking and impartial president of the board. While only likely to be used in exceptional circumstances, this amendment ensures that where the defendant in the court martial is a very senior officer, it will always be possible to select a president of the board with the appropriate seniority for the important duties and functions of the role, eliminating the risk of a legal case being overturned.

I believe that our armed forces personnel should all be held to the highest possible standards, whether they are starting out or at the end of their military careers, and no one should be able to time the system out. I believe in the fairness and rigour of our service justice system: no individual, irrespective of rank, should get off on a technicality. A high-functioning service justice system underpins the operational effectiveness of our armed forces.