Court Martial 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.

section IV(2)(a) below I discuss the historic primacy of the High Court's predecessor, the Court of King's Bench. To offer the same guarantee of properly mediated law, any alternative source must amount to an alter ego of the High Court; and indeed there are instances where the authoritative source is another court, such as the Court-Martial Appeal Court and the Restrictive Practices Court (see the reference at paragraph 71 below to R v Cripps, ex parte Muldoon [1984] 1 QB 68).

The question whether the criminal activities of a member of the military require dismissal from the Service is pre-eminently, although not exclusively, a decision for the Court Martial.

There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the Army Act.

He was handled in a robust manner by those under [the appellant's]command clearly causing him additional pain and [the appellant] did nothing to stop them from treating him in that way. When out of view of the PGSS [the appellant] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

They remain subject to UK military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere. They are also subject to the general criminal and civil law. As a matter of international law, no infringement of the sovereignty of the host state is involved in the UK exercising jurisdiction over its soldiers serving abroad.

Unfortunate though that may have been, the totality of the evidence before us is now clear. If the expert evidence of the psychiatrists and the other evidence which we set out fully at paragraphs 86–106 below had been before the court martial, we are in no doubt but that the defence of diminished responsibility would have had to have been left to the Board and that it could have affected their decision to convict.