Contribution
My Lords, my noble friend Lord Thomas of Gresford is, unfortunately, unable to be in his place tonight, so I am speaking on his Amendment 36.
In October 2006, my noble friend Lord Thomas of Gresford moved an amendment to the Armed Forces Bill, with the support of Air Marshal Lord Garden to confine sentencing in court martials to the presiding judge advocate alone, following consultation with the members of the panel. He said: “The area of sentencing for criminal offences is difficult and complex. Sentencing is an exercise for which the members of the panel have no training whatever. They do not attend sentencing conferences or have the training on sentencing that the most junior assistant recorder in this country receives, let alone any further or higher training for dealing with serious offences”.
The 2006 Act was a major reform of the system but did not include this particular amendment. It did, however, abolish the pre-existing review system whereby the Judge Advocate-General reviewed the conviction and sentence before they became final, a process which historically had operated as a check on the sentence passed. The 2006 Act introduced a service supervision and punishment order under Section 173, which imposes a quite concrete restriction on a serving soldier’s movements.
A service community order employs the community order requirements contained in the civilian sentencing legislation, adapted for service courts. The court martial can impose one or more requirements on the convicted serviceman as part of such an order. However, the SCO is principally a sentence for someone who is being dismissed from the service, and it follows him into civilian life. The recent Sentencing Act 2026 brought in the possibility of new restrictions to the SCO, the most important of which is the imposition of a restriction zone to prevent an offender from entering a particular area with, for example, the intention of assaulting or harassing a victim. Other restrictions may prevent him drinking in certain pubs or attending public events or even impose restrictions on driving.
There is, therefore, a whole army of sentencing disposals for those who are convicted. Professional judges are trained to weigh the advantages and disadvantages of imposing particular restrictions on the individual who stands before them. This requires experience and judgment. The court martial panel consists of a president and members of warrant officer rank and above who are drafted in for a particular case. The president is usually an officer for whom the position is a final posting, but the members may never have been in any sort of court before. Compare that with a magistrates’ court. The sentencing powers of a magistrates’ court are still restricted to 12 months’ imprisonment on a single charge, even though the magistrates will individually have undergone considerable periods of training. The court martial panel, without any training, is unrestricted.
Further, there is no longer a review by a professional judge of the sentence they choose to pass. Certainly, the judge advocate at the hearing can advise the panel and has a casting vote in the event of equality of voting by the members, but he can be outvoted altogether and his advice ignored.
In 2014, my noble friend Lord Thomas of Gresford gave evidence before a departmental review in Washington as part of an inquiry which led to widespread reforms of the military justice system in the United States, the equivalent of our 2006 Act. These reforms were intended to transform military justice from a disciplinary system operating under the chain of command to something increasingly resembling an independent criminal court operating within US Armed Forces. In its report, the 2015 Military Justice Review Group also pointed out, as my noble friend had urged, that military judges had greater experience and expertise in sentencing than randomly selected panel members. It was concerned about sentencing disparity. The existing system gave the panel very broad discretion and relatively little guidance. From a constitutional point of view, it was concerned that there was the perception of command influence over sentencing and military command culture could influence punishment. It is perhaps possible to detect such a culture in the public utterances of a certain Mr Hegseth.
In its Military Justice Act 2016, Congress compromised on the issue. Judge-alone sentencing became the norm, but as a concession to tradition, a convicted person was entitled to opt for sentencing just by the panel alone. During the four years that followed that Act, it was observed that defendants chose judge-alone sentencing in 96% of the cases. As a result, the Independent Review Commission on Sexual Assault in the Military, established in 2021 in the aftermath of intense congressional debate over sexual assault in the armed forces, was concerned in sexual offences cases that a service court martial panel would almost inevitably be male dominated, as in the case of Captain Jacob Wulfson from Lakenheath, that the noble Lord and I both referred to at Second Reading.
The commission recommended judge-alone sentencing in all non-capital general and special courts martial, subject to the establishment of sentencing parameters and mandatory restitution, akin to our own Sentencing Council. We have always led the USA in the reform of military justice, and it galls me that in this instance, it has taken the right and proper lead that sentencing is a matter for professionals and not for one-day amateurs.