Military Law

Better to be tried by twelve than carried by six – a dark thought maybe, but one that goes to the heart of what it is to serve, to make life and death decisions, often in split seconds, frequently miles away from the ‘Command’ or reinforcements.

Service life and the realities of combat put unique pressures on people, from combat operations to supporting family members through hard times despite being deployed half-way across the world. Missed birthdays, parent’s evenings and anniversaries are the norm. “Call me back, it’s urgent” isn’t always possible when you’re on a patrol, on foot or underwater.

These are just some of the arguments put forward for keeping the Courts Martial system. That the ‘peers’ trying Service personnel should be those who understand these pressures, not just people who can empathise, but people who have been there and experienced it. Is this really the protection it is assumed to be though?

Court Martial boards tend to be representative of the Services, skewed to the male. With the best will in the world, are they best placed to understand the pressures faced by the only woman on a squadron, faced by the only BAME member of a ship’s company? How often, without malice but because of a lack of understanding do they disbelieve someone because they do not have experience of “that kind of thing happening in my unit”?

How often do they lack understanding because they’re not part of the minority that kind of thing happens to, so they just don’t see it? Let us not forget that the ban on LGBT+ personnel serving was only lifted in 2000, and it took until 2018 for women to be allowed to serve in all combat roles.

As recently as July 2021 the House of commons Defence committee reported that of the female Service personnel and veterans they had surveyed, 62% reported bullying harassment and discrimination that ranged from low level verbal aggressions to rape. With the Service Justice System Review (the Lyons review) finding in 2018 that the Service Police, “do not investigate enough serious crime to be considered proficient”, and that there were similar shortcomings in the experience of the Service Prosecuting Authority, it is clear that there are problems.

The type of deep-rooted change needed to resolve these issues is complex and slow to achieve. What then can be done in the meantime? For those of us, like the team at Drystone, who regularly defend in Courts Martial trials, we have to be aware of these issues, challenging assumptions early and making sure every Service person is treated by us, and by the system, as the individuals they are. For those of us who have, and continue to serve (regular and reserve), we can use that experience to provide advice and representation that builds on our shared backgrounds, while bringing exactly the same level of forensic examination of the evidence as we use in our civilian trials. What we really need though is for us all to engage with the conversation.