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Abstract

The Armed Forces Act 2006 established a single system of Service law and created the Court Martial as a permanent standing court in the United Kingdom that has jurisdiction over cases involving crimes committed between service people, including rape and other serious sexual offences. The status of the Court Martial as an ‘independent and impartial tribunal’ (Human Rights Act 1998, Article 6) fit to prosecute rape and serious sexual offences has, however, been disputed. In 2020, three servicewomen sought a judicial review of the defence secretary’s decision to allow serious sexual crimes to remain under the military court’s jurisdiction. The decision was made in disregard of a Ministry of Defence-commissioned review, which encouraged the court martial jurisdiction to exclude rape committed in the UK, except with the consent of the Attorney-General. An assessment will be made as to the feasibility of removing serious sexual offences from the court’s marital jurisdiction to ensure fair and effective justice for service members and to uphold their right to a fair trial. This assessment is made in light of the fact that the military court’s rape conviction rate is significantly lower than that of the civil system, and in light of findings of case mismanagement and lack of expertise pointing to unjust trial procedures. The article further argues that the Ministry of Defence’s recent rollout of educational and awareness programmes and victim support measures are insufficient in addressing the fundamental inadequacies of the military system that can only be solved by reforming the relevant investigatory and judicial processes.