Military Law in UK Law

In addressing the submissions of Mr Wrack, we have reminded ourselves that the Court Martial is a specialist criminal court. That does not mean that we accept blindly the decision of the Court Martial, but we must attach due respect to a court which is designed to deal with service issues. They particularly deal with service issues which arise in circumstances which cannot arise for any civilian. For example, a civilian who goes absent from his or her job does not commit a crime.

There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community, or where refusal to serve would earn grossly excessive or disproportionate punishment: see, for example, Zolfagharkhani v Canada (Minister of Employment and Immigration) [1993] FC 540; Ciric v Canada (Minister of Employment and Immigration) [1994] 2 FC 65; Canas-Segovia v Immigration and Naturalization Service (1990) 902 F 2d 717; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paras 169, 171.

In my judgment, neither the Secretary of State nor Lang J made any error of law. The onus was upon the appellant to establish his good character for the purpose of section 6(1) of and schedule 1 to the 1981 Act.

The UNHCR recommendation for temporary protection while the situation is reviewed in mid 2004 is weighty. But the material which is the most troubling is that which concerns the forced return from Malta of those who were of draft age, and were in part at least failed asylum seekers. They appear to be held incommunicado, without charge or visits in conditions which do not appear to be simply the spartan ones to which CIPU referred for civilian prisons.

The offence of going absent without leave, as indeed the offence of desertion, is not one in respect of which any civilian parallel exists. The sentencing considerations involve factors that are particular to the armed services, in respect of which their judgment and experience are entitled to great weight.