The review of the service justice system

What is the service justice system?

The service justice system (SJS) provides a legal framework that ensures Service personnel are subject to a single disciplinary code that applies wherever they are serving.

The disciplinary systems of the three services – the Army, the Royal Navy and the Royal Air Force – were drawn together under a common system by the Armed Forces Act 2006. Subsequent quinquennial Acts amend the 2006 Act.

While the service justice system mirrors the criminal law in England and Wales as closely as possible it also provides an avenue to enforce standards that are distinctive to the Armed Forces, for example absence and misconduct. Service personnel are subject to the service justice system wherever they may be serving and it applies to conduct both within and outside the United Kingdom.

Why was a review commissioned?

The review was announced in Parliament by Baroness Goldie, the spokesperson on defence in the Lords, in response to a topical question by Lord Morris of Aberavon, a former Attorney General, who had previously raised concerns about the Court Martial process with the Government. Baroness Goldie said:

In preparation for the next Armed Forces Bill in 2020, the Government have decided that the time is now right for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century.

The service justice system has come under the spotlight in recent years in part because of several prominent cases. These focused on issues such as the handling of allegations of sexual assault and rape and the jurisdiction of the service police in investigating such offences in the UK, the prosecution of the most serious offences such as murder at Court Martial, and the use of majority verdicts at Court Martial.

About the review

The review was carried out by His Honour Shaun Lyons, a retired senior Crown Court Judge. The MOD published the service justice system review in February 2020.

The review consists of two parts:

• Part one examined the need for the SJS and provides an overview of the system. It also examined in a separate document whether the service police match the requirements of the SJS (led by Professor Sir John Murphy) and conducted a process audit of domestic abuse and serious sexual offences investigated by the Service police (led by retired police officer Mark Guiness). Submitted to the MOD in March 2018.
• Part two took further some earlier aspects of the review and recommended ways in which the system can be improved. Submitted to the MOD in March 2019.

What has the Service Justice System review recommended?

The review makes a series of recommendations, some of which require legislative changes.

One of the most significant recommendations is that murder, manslaughter and rape should not be prosecuted at Court Martial when these offences are committed in the UK, except where the consent of the Attorney General is given. Rather, they should be prosecuted in the criminal justice system, as was the case prior to the Armed Forces Act 2006. If accepted by the Government, the review also recommends that service police should not investigate these cases when they occur in the UK.

The number of members who sit on the Board (jury) of a Court Martial should be amended; sitting with either three or six members (depending on the charge and sentencing power) and OR7 ranks should be able to sit on boards. The review also recommends the current simple majority requirement be replaced with a qualified majority of five to one. These recommendations require legislative changes.

The review recommends the creation of a new independent oversight body for the service police forces and the creation of a new tri-service Defence Serious Crime Unit to deal with major crime. A separate Library paper discusses these recommendations: The Service police Review.

The review also makes a number of recommendations concerning the recording and investigation of domestic abuse and the support given to victims.

Has the Ministry of Defence responded?

Yes. The MOD gave a response when it published the review documents, although it has amended this response during 2020 to reflect changes to its response.

The MOD has indicated acceptance of some of the recommendations of the review, for example it has started scoping work on establishing a Defence Serious Crime Unit (DSCU), and the need for additional independent oversight of complaints about the Service Police.

The MOD has also indicated that a number of the review’s recommendations are being considered as legislative proposals for inclusion in the next Armed Forces Bill. These are discussed in detail in this paper.

However, the Defence Secretary has rejected one of Lyons’ main recommendations. Namely, that Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given. The Defence Secretary has said the existing principle of concurrency between the service justice system and civilian criminal court system should be retained. The Centre for Military Justice is seeking a judicial review of this decision.

In October 2020, during the course of the Overseas Operations (Service Personnel and Veterans Bill), the Government announced a new, judge-led review of how investigations are raised and investigated when they occur overseas on operations. The MOD explicitly said it will "build upon and not reopen" the recommendations of the service justice system review. This review is expected to be finished in summer 2021.

About this paper

This paper was written before the Armed Forces Bill 2021 has been introduced and therefore does not reflect the content of the Bill.

The Bill was introduced in the Commons on 26 January 2021 and had its Second Reading on 8 February 2021. Library paper The Armed Forces Bill 2019-21 sets out the background to and the contents of the Bill.

A separate paper discusses the Service Complaints System.

This paper replaces The Military Justice System: an introduction, SN06823, 14 February 2014.