Guidelines on Sentence by Court-Martial
| DOI | http://doi.org/10.1177/002201839906300624 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
Guidelines
Olt
Sentence
by
Court-Martial
and that the evidence of the confused situation on the ground in Bosnia
is itself proof of the fact that the two terms may overlap. An attack on a
so-called peace-keeping force, which is operating in
what
is in fact a
warlike situation, is both aviolent warlike act and a violent crime
under
international law. The court concluded that the Ministry was entitled to
accept that
the
factual situations in Northern Ireland and in Bosnia were
not
the same, although this would appear to rest on one's decision of
which of
the
two
elements is dominant.
COMMENTARY
As to the applicant's submission
that
the Ministry's failure, to inform
those likely to be affected by its change in policy, was unfair,
the
Ministry had, as soon as the applicant had made his formal application,
explained that policy to him, together with the reasons for its decision.
That, in the opinion of the majority of
the
court, sufficed to render
the
process fair, for the applicant had no reason to expect that the policy he
thought applied to Northern Ireland necessarily applied to the rather
different situation in Bosnia. There is, of course, high authority for
the
proposition that
the
court is entitled to, and will, interfere in a case of
unfairness,
but
that
authority was held to be irrelevant, as there was no
unfairness here.
It
is, however, to be observed that this decision is that
of
the
majority of
the
court, for Chadwick U was of opinion
that
the
appeal should be allowed,
on
the
ground that the awards panel of
the
Army Board
had
either failed to distinguish between
'war
operations'
and 'military activity between warring factions', or, if it
had
made
that
distinction, it
had
asked
itselfthe
wrong question
and
there was no
evidence to support its decision.
Guidelines on Sentence by Court-Martial
Rv
Cooney;
RvAllam; R v
Wood
[1999] 3 All ER 173
In R v
Cooney,
the
appellant was convicted on charges of indecent assault
and
sentenced to six
months'
imprisonment, dismissal from
the
service
and
was reduced to the ranks. In R v Allam, on conviction of causing
death by dangerous driving,
the
appellant was sentenced to 18
months'
imprisonment, dismissal from the service and reduced to
the
ranks. In
R v
Wood,
the appellant,
who
pleaded guilty to charges of false account-
ing, was sentenced to a fine of £1,000
and
dismissal,
but
the further
sentence of stoppage of pay was quashed on review,
but
he was
then
reduced to
the
ranks. In all three cases, their appeals against sentence
were allowed, to permit of variation of sentence.
In these three cases,
the
court was principally occupied with the issue
of guidelines for determining
the
appropriate sentence to impose on a
member of the armed forces convicted of a civilian offence and, in so
doing, it highlighted .the differences between
the
roles of the civilian
and military courts. In consequence, it may be
thought
that while
the
563
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