Sentencing in the Court Martial

Sentencing in the Court Martial



There are similarities between the Court Martial and the civilian courts, however there are some very distinct differences. For example, the jury – known as the board – are made up of service members. Upon a conviction, the board and the judge – known as the Judge Advocate (or Judge Advocate General) – decide on the sentence.

For more information, see the Guide to procedure in the Court Martial – a lengthy but interesting read. It should answer all your questions about procedure in the military courts.

Sentencing generally

The Judge Advocate General Jeff Blackett – head of the military court system – has issued Guidance on sentencing in the Court Martial.

It sets out general guidance and offence specific guidance for Judge Advocates when sentencing people in the Court Martial. Included in the general guidance are the aims of sentencing. These differ to those specified in CJA 2003 s 142 which are applicable to civilian courts.

• the punishment of offenders;
• the maintenance of discipline;
• the reduction of Service offences and other crime (including reduction by deterrence);
• the reform and rehabilitation of offenders;
• the protection of the public; and
• the making of reparation by offenders to persons affected by their offences.

Additionally the Court Martial must take into account what is in the best interests of the Service, because the whole Services justice system is designed to underpin the operational effectiveness of the Armed Forces.

Available sentences

The Court Martial has available to it the standard sentences to which civillians can be sentenced, imprisonment, compensation orders, community order etc. But there are also service-specific sentences such as dismissal from HM’s Service, reduction in rank, stoppage of leave etc. A full list is available at para 2.10 of the Guidance on Sentencing in the Court Martial document.

As you are probably aware, judges in criminal civilian courts are ‘assisted’ by sentencing guidelines produced by the Sentencing Council. There is no equivalent body for sentencing in the military courts, and the Court Martial must ‘have regard to’ any Sentencing Council guideline. There is of course a discretion to depart from a guideline if in its opinion the departure is justified by any features of Service life or of the Service disciplinary system that are relevant to the case.

Officially, the Court Martial guidance supplements the Sentencing Council guidelines. In practice, I expect the Court Martial guidance has rather more sway than the Sentencing Council guidelines.

Taking into account service policy

The guide states:
The Court Martial is an independent court but it is also an essential part of the process which maintains discipline within the Armed Forces. It is legitimate for the Court to take account of (but not to be strictly bound by) declared Service policy considerations when deciding appropriate sentences.

Serious criminal offences

The guide states:
Differences in the level of sentence between civilian and Service courts are minimal for the more serious criminal conduct offences. Homicide, rape or armed robbery are sentenced as in a Crown Court; only exceptionally would the sentence vary. Thus for example, the entry point for a soldier being sentenced for rape would be the same as in the Crown Court since the general sentencing tariff is sufficient to subsume the Service interests.

Does ‘service policy considerations’ mean they get reduced sentences?

No. As an example, here is a short passage from the section on possession of drug offences:
The Armed Forces’ policy on drug abuse is published in Joint Service Publication 835. It states that the misuse of drugs is incompatible with the demands of Service life and poses a significant threat to operational effectiveness. The implications of drug misuse are particularly damaging and the illegal possession and use of controlled drugs is an offence under both Service and civil law. Drugs impair judgement and reliability, reduce fitness, damage health, degrade performance, and harm team cohesion and Service ethos – as well as being harmful personally, to family relationships and to society generally. It is Service Personnel Board policy that there is no place in the Armed Forces for those who misuse drugs. Only in exceptional circumstances will any member of the Armed Forces be retained following drug misuse.

Personnel in the Armed Forces who carry lethal weapons, operate and maintain dangerous equipment, or bear responsibility for the safety of others must display higher standards of behaviour than civilians. They must expect to be punished more severely for breaching those high standards.

Lyndon is the General Editor of Current Sentencing Practice and the Criminal Appeal Reports (Sentencing)