It was Edward I who first established in 1279 that the sovereign must have the power to command the nation’s military forces. This privilege also afforded the Crown the power over army discipline and regulation for the first time. It gave him joint power with the civil courts over any civil offences committed by soldiers, as well as full power over military offences.
The Court of the Constable and Marshall was founded and, at first, would deal with all military law and develop a list of Rules and Ordinances of War. This would be granted by the King at the beginning of every military campaign. This established what could and couldn’t be carried out by serving soldiers. It, therefore, created the bedrock of military law back then. Subsequently, the Rules and Ordinances became known as Articles of War, establishing offences that would be punishable, such as desertion and disobedience.
The First Courts Marshal
In 1521, after the incumbent Lord High Constables’ argument with Henry VIII (which lead to his beheading), the office was forfeited exclusively to the Crown. The military court would now sit less regularly, which reduced its powers and allowed it to be totally absorbed by committees of officers, known originally as Marshal Courts, before subsequently being known as Courts Marshal.
The public continued to believe that the military was under the absolute control of the Crown and consequently of no interest to them. This allowed the Courts Marshal to form their own policies and procedures. Two levels of court were founded. The General Court had greater power and a larger remit than the Regimental Court, which could only try officers of the rank of Captain or under. It also had no legal assistance, whereas the General Court was advised by the Judge Advocate, who was commonly a professional lawyer from the civilian society.
It wasn’t until 1689 when legal acknowledgement came from Parliament. Military courts were legally acknowledged under the Mutiny Act, something which many in the military were not happy about. Their preferences for simplicity, informality, and decisiveness within the military court system matched their goals. Certainly, there are no written records of court cases nor any oaths requested before 1805. The whole system was extremely effective for its time, with sentences generally executed immediately. Nevertheless, it did not have the accountability that the modern Court Martial has. The court gradually became more accountable and more authoritative following the Army Act of 1881, and the Mutiny Acts between 1680 and 1878. The Army Act is a piece of rolling legislation that has been continuously renewed every year since 1881, and still shapes a large part of the present day Court Martial procedure.
Military courts in the 20th century
During World War I, the military court was not able to manage the new-found demand. By 1914, it had been broken down into four separate types of courts martial, each with its own separate legislation and constraints. The abolition of the Regimental Court in 1920 and various reforms has formed the basis of the modern Court Martial, with the process today being extraordinary similar to that of the civil courts. Appeals in military courts were only launched in 1951; the courts decision prior to this was full and final. From 1951 to the Armed Forces Act 1996, soldiers were only allowed to appeal on a point of law. From 1996 onwards, appeals were granted against any sentence.
In 1925, a report was submitted by an interdepartmental committee which claimed that, for some crimes, capital punishment should be removed. However, Parliament narrowly rejected this during a vote. The death penalty was abolished in 1928 for offences such as disobedience, sleeping while on post, striking superior officers, and five other offences including desertion and cowardice, which had been the two most notable offences resulting in execution throughout the First World War. Civilian crimes as well as mutiny kept their sentence of capital punishment, as covered by the 1940 Treachery Act. The 1998 Human Rights Act abolished the death penalty in the UK completely, and there is no crime at present you can commit, whether you were in the military or civilian, which can lead to capital punishment.
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