Chapter Sixteen – Reporting Courts Martial – UK Media Law Pocketbook Second Edition

UK Media Law Pocketbook Second Edition 30th November 2022

By Tim Crook

Online chapter

Explaining the media law of the courts martial system in the British Services run by the office of the Judge Advocate General and Military Court Service.

Military Court Centres in the UK are based: Bulford (Wiltshire) and Catterick (Yorkshire) and the Court Martial may also sit from time to time in Northern Ireland (Aldergrove), Germany (Sennelager) and Cyprus (Episkopi).

Open justice, media contempt, and reporting restriction issues and significant case histories.

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Bullet points summarizing key aspects of the media law of reporting Courts Martial:

The courts martial system in the British Services is run by the office of the Judge Advocate General and Military Court Service in the Service Justice System (SJS). The current JAG is His Honour Judge Alan Large (See: https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judges/judge-advocate-general/);
Most trials take place in the Military Court Centres in the UK which are in Bulford (Wiltshire) and Catterick (Yorkshire) These sit full-time on a continuous basis 43 weeks of the year in modern, fully equipped facilities.
The Court Martial may also sit from time to time in Northern Ireland (Aldergrove), Germany (Sennelager) and Cyprus (Episkopi). MCS arranges, funds and supports trials at these centres and sometimes at other venues in the UK and overseas.
This system of courts tries criminal offences as well as breaches of specific armed forces discipline and duties. Summary Appeal Courts hear appeals from summary decisions and punishment handed out by commanding officers.
At courts martial in trial and sentence hearings a professional judge known as the Judge Advocate presides over the proceedings. He/she is joined by a court martial board that consists of a minimum of 3 and maximum of 7 service people at commissioned officer and warrant officer level who have served for not less than three years.
The senior officer is called the President of the Board. The Judge rules and directs on law and the members of the board decide the facts and also the sentence. This means the risk of media prejudice extends between findings of guilt and the sentence hearing.
The board members operate like jurors in the civilian courts, though unlike jurors they have a role in determining the sentence with the Advocate General who does not have a vote in relation to the determination of the verdict which is known as a ‘finding’ in military courts.
Courts martial board members must not have been the commanding officer of any defendant/appellant, nor have served in the same unit at any time from the date of the alleged offence.
Cases are prosecuted by the Service Prosecuting Authority. During trial the Judge Advocate is addressed as ‘Sir’ or ‘Madam’, the Judge Advocate General as ‘Your Honour’ and when a High Court Judge presides, as Mr Justice McKinnon did at Bulford in the Baha Mouza case, the proper address is ‘My Lord.’
The usual composition of a military court board is five and this can deliver majority verdicts of three to two. The Appeal Court ruled in 2009 that courts martial can no longer reveal whether verdicts are unanimous. The Court Martial Appeal Court ruled in 2010 that majority verdicts do not infringe the right to a fair trial or produce an unsafe conviction (See: https://www.judiciary.uk/about-the-judiciary/our-justice-system/jurisdictions/military-jurisdiction/);
The principle of open justice as expressed in Scott v Scott in 1913 applies to the Court Martial just as it does in any other criminal court, and the presumption is that all criminal court proceedings are open and accessible to the public. There is a statutory requirement that the Court Martial sit in open court unless there is a compelling reason for the judge to direct otherwise: for instance, cases involving matters which could lead to the disclosure of security classified information may be held in camera.
In Courts Martial just as in other criminal courts, automatic reporting restrictions apply under certain circumstances which may render discretionary restrictions unnecessary, such as: restrictions on publishing information identifying of victims or alleged victims in sexual offence cases; rulings made at preliminary hearings. The judge may provide guidance to the media as to the applicability of automatic reporting restrictions in a specific case. The media remain responsible for ensuring they comply with the law.
Discretionary reporting restrictions can be imposed by a judge under the Contempt of Court Act 1981. Section 4(1) of the Act provides that publication of a fair, accurate and contemporaneous report of proceedings held in public is lawful, and s 4(2) provides: In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.
The Armed Forces Court Martial Rules give military courts the power to give leave for any name or other matter given in evidence in proceedings to be withheld from the public. The Coroners and Justice Act 2009 s 86 provides for witness anonymity orders and s 94 makes it clear this provision applies to Service courts). A witness anonymity order requires specified measures to be taken in relation to a witness to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.
The kinds of measures to be taken include measures for securing that the witness’s name and other identifying details may be withheld or removed from materials disclosed to any party; that the witness may use a pseudonym; that the witness is not asked questions that might lead to his or her identification; that the witness is screened; and that the witness’s voice is subjected to modulation.
The Contempt of Court Act 1981 s 11 provides: In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld. S 11 directions may be made in relation to the defendant or a witness, or any other “matter” relevant to proceedings (for instance, evidence which is sensitive for security reasons).
Prosecution or defence counsel may apply for orders imposing reporting restrictions so as to withhold from the public the identity of defendants or witnesses only if such an order is necessary for avoiding a risk of impediment to or frustration of the administration of justice. This may be in the instant proceedings or in future proceedings.
For the protection of a particular witness, directions may be given for example permitting the witness to give evidence from behind a screen or under a pseudonym (“X”) rather than their real name. It is not sufficient that the reporting of the name, etc. would cause the defendant or witness embarrassment, or even financial loss; those applying for such a restriction must show by way of evidence that failure to exercise the discretion to withhold the name would risk frustrating or impeding the administration of justice, for example because there are reasonable grounds for fearing that the operational or personal safety of these individuals is threatened.
Judges consider each such application on its merits, giving due weight to the public interest in the principle of open justice and to the qualified right to freedom of expression (the right both to impart and receive information) under Article 10 of the European Convention on Human Rights (ECHR).
Personal safety considerations may, where there is cogent evidence in support, justify non-disclosure of identity on the grounds that disclosure would contravene the rights of the individual under ECHR Articles 2 right to life & 8 right to privacy. The Armed Forces (Court Martial) Rules 2009 r 26 contain general provisions enabling the judge to conduct the proceedings: “…in such a way as appears to him to be in the interests of justice.” (See: https://www.judiciary.uk/wp-content/uploads/2022/10/practice-memo-ver-6-1Sep16-1.pdf);
A Court Martial Appeal Court case involving the Times and Guardian and a trial of members of the Special Forces in 2008 established a two-fold test for deciding whether to withhold the name of the defendant: either that ‘the administration of justice would be seriously affected were it not to grant anonymity’ (from Scott v Scott) or that ‘there is a real and immediate risk to life’ (a more modern limb arising from ECHR Article 2 as recognized in the 2007 House of Lords case about police officer witnesses to an inquiry in Northern Ireland known as Re Officer. (See: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2008/2559.html);
The ruling in the case of Marine A, Sgt Alexander Wayne Blackman in December 2013, convicted of executing a wounded Afghan insurgent re-affirmed this principle. This case also stipulated that anonymity issues had to be resolved before the beginning of courts-martial and any release of footage or image of the victims of murders or serious crimes should consider the impact on their or their families’ rights to respect for privacy and family life. (See: https://www.bailii.org/ew/cases/EWCA/Crim/2013/2367.html and https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2017/326.html);
Where practicable the media must be notified in advance about any applications for reporting restrictions and have the opportunity to make submissions in relation to the application. Failing that, in an exceptional case, an order should be expressed to be interim and be followed up by a further hearing open to the public and notified to the media at which the judge reconsiders the reporting restrictions already made, after giving the media an opportunity to be heard or represented.
Media representatives prefer to and are entitled to expect to be given an avenue for making representations at the time when the restrictions are originally imposed. The media may appeal against reporting restrictions imposed in the Court Martial to the Court Martial Appeal Court.
The Judicial Communications Office circulates the existence of media restriction orders to a wide circle of media contacts, and deals with phone calls or queries from the media about actual or possible reporting restrictions. The Court Officer hands out hard copies of the order imposing reporting restrictions locally to any media representatives present at court on the day. Simple queries received locally may be dealt with locally, if the answer is sufficiently obvious, but otherwise are referred to JCO.
Whenever there is significant media interest in a forthcoming trial, with the likelihood of many press and broadcast media personnel attending, MoD Media Ops make arrangements for management, accreditation, etc of the journalists and if required for a pre-trial briefing.
MoD Media Ops may arrange a photo-opportunity for the defendants, if they agree. Nothing prevents the media from taking any other photographs or videos outside of the court precincts in the same way as for a Crown Court. MCS Court Officer arranges for journalists and their vehicles to be accommodated suitably inside and outside the court centre, and may arrange a photo-opportunity for the judge, if he agrees.
Media representatives address requests for access to images, documents, or video material to the prosecutor in the first instance, and the prosecutor takes the initial decision to permit or deny access. It has been agreed that the prosecutor will have regard to the Crown Prosecution Service / Association of Chief Police Officers (CPS/ACPO) document “Publicity and the Criminal Justice System – Protocol for working together” (October 2005), insofar as it is relevant.
The overriding objective is to provide an open and accountable prosecution process, by ensuring the media have access to all relevant material wherever possible, and at the earliest appropriate opportunity.
Although the ECHR Article 10 guarantees the right to impart and receive information, this must be balanced against the other rights guaranteed, notably by Article 2 (Right to Life) and Article 8 (Right to Respect for Private and Family Life). Additional considerations for a military prosecutor would be whether material should not be disclosed for operational reasons or for reasons relating to the personal safety of military personnel.
In 2013 the then Judge Advocate General Jeffrey Blackett agreed a composite of stills could be released for use by the media during the 2013 trial of Royal Marines for murder in Afghanistan. He ruled against the release of moving video and any still image of the actual death of the wounded Taliban fighter.
He did agree to a release of the sound from the video. His decision that all five soldiers originally charged, including Marine Sergeant A found guilty, should be identified was challenged by the servicemen at the Court Martial Appeal Court.
In a significant precedent the three-judge appeal, including the Lord Chief Justice, decided Sergeant Alexander Wayne Blackman should be named and at least two of those who had been acquitted. The risk to the right of life had to be ‘real and immediate’ and the standard of decision ‘reasonableness.’
The court also decided releasing footage or images of victims of murders and assaults might be a serious encroachment on their and their families’ rights to respect for privacy and family life. (See: https://www.bailii.org/ew/cases/EWCA/Crim/2013/2367.html);
In 2017, following a substantial campaign supported by the thriller writer Frederick Forsythe, the Daily Mail and politicians saying Sergeant Blackman was the victim of a miscarriage of justice when he was convicted of murder and jailed for life with a minimum of eight years, a further appeal resulted in the substitution of a conviction for manslaughter and a jail sentence enabling near immediate release. (See: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2017/326.html);
It can be assumed that The Remote Observation and Recording (Courts and Tribunals) Regulations 2022 enable access by accredited journalists to remote transmission of Court Martial proceedings. Video hearings and remote participation was operated by the military court system during the pandemic of 2020 to 2022.
The regulations do not specifically mention courts martial, but at the same time the statutory instrument 2022 No. 705 relates to criminal procedure in proceedings of any type and in any court to which section 85A of the Courts Act 2003 applies, which are in public. This refers to Section 19 of the Contempt of Court Act 1981 which states a ‘“court” includes any tribunal or body exercising the judicial power of the State, and “legal proceedings” shall be construed accordingly.’