A concise history of the Courts Martial

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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World War I Courts Martial

When the First World War broke out in 1914, no-one could have predicted the death and devastation that would follow, and certainly not the scale on which it happened. However, the deaths did not come only in battle and active service. Between August 1914 and March 1920, more than 3,000 members of the British Armed Forces were sentenced to death through courts martial because of misdemeanours committed during a time of war.

Although some of the crimes were relatively serious — desertion, murder, espionage and mutiny, for example — others were far less serious by today’s standards. Many men were sentenced to death for crimes as small as striking a superior officer — something which seems very extreme by the standards we have set for ourselves in the modern age.

It is worth noting that around 90% of those military court sentences were later commuted to penal servitude or hard labour, although many men still faced the firing squad for a number of military misdemeanours which might nowadays seem rather mild. In total, 346 men were executed, three for sleeping at their post, two for casting away arms and eighteen for cowardice. Although nowadays we might see these crimes as small and relatively insignificant, the names of these men still do not appear on official war memorials and they are largely forgotten and officially regarded as traitors to their country.

With so many men affected by seeing their friends killed and mutilated on a daily basis, it can hardly come as a surprise that so many soldiers were affected in ways which led them to run away from battle or hesitate when faced with the enemy. The military top brass, though, saw things differently. The firing squads were meant to be a deterrent to those considering any act of disobedience, and many see them as a necessary means to having won the war. Just over a decade after the end of the war, in 1930, the military death penalty was completely outlawed.

Although it is often argued that mental illness and distress symptoms have only recently been accepted and seen as real medical issues, this appears not to be a reasonable line of reason to take. The Ancient Greeks, for example, already recognised post-traumatic stress disorder, calling it ‘war exhaustion’.

In recent years, the British Legion and other groups have called for the executed men to be officially recognised on war memorials and to be given official military pardons. Many academics have argued against this, saying that we can’t impose our modern views on punishment on events which happened a century ago. Regardless, though, the tide is turning towards forgiveness and a growing number of people are seeking to see the soldiers officially pardoned, perhaps finally allowing them and their memories to lay to rest.

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The most serious military law offences in the UK

In uk military law, the sentences that can be imposed can vary wildly from dismissal from active service to life imprisonment. It can be surprising to the civilian population just which offences carry the harshest sentences, as it often does not necessarily reflect what might be considered to be a serious offence in the civilian world.

For example, allowing fuel to overflow when filling a petrol tank is considered to be misapplying or wasting public or service property, a section 25 offence which carries a maximum sentence of dismissal with disgrace. The same punishment can be given to an officer who flies an aircraft in a manner which annoys someone else. These may seem like small, petty crimes to the civilian population — or perhaps not even crimes at all — but are seen as very serious in the Armed Forces – largely because of the significant danger of explosion that overflowing petrol can cause.

Up to two years’ imprisonment can be given for a number of offences, including intentionally flying below 2,000 feet in a fixed-wing aircraft or 500 feet in a helicopter, resisting arrest, obstructing or failing to assist an officer when requested bullying a colleague or being unfit through alcohol or drugs. The sentence also applies to disclosure of information, failing to attend duty or perform a duty and disrespectful behaviour to a superior officer.

Ten years’ imprisonment can be given for putting colleagues at risk, failing to escape or preventing others from escaping when it was reasonably possible, using violence against or threatening a superior officer or recklessly obeying a command. The most serious sentence which can be given by a military court is that of life imprisonment, which is applicable to quite a surprising number of offences.

Military offences – what can lead to life imprisonment?

Life imprisonment in a military prison can be the sentence that results from dangerous flying, giving false air signals to aircraft or interfering with the signals, recklessly hazarding a ship, being absent without leave (desertion), failing to suppress a mutiny with prior knowledge, attempting mutiny or disobeying lawful authority, taking property from killed or injured officers, surrendering or abandonment without reasonable excuse and assisting an enemy. Even providing an enemy with supplies or harbouring or protecting them can result in life imprisonment, and all of the above are viewed very seriously in the military world and the resultant punishment will depend on the extenuating circumstances and the views of the Judge Advocate and the Board.

It is also worth remembering that civilians are liable to be prosecuted under military law should they be working as an MOD contractor or for any one of a number of other organisations, are on military grounds or are in a designated area with a spouse or acquaintance who is on active military duty. It is for this reason that it is important that the nuances of military law and its applicable sentences are known to all, as it is reasonably possible that they could apply to anyone — not just active service personnel.

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