356 General Principles of Constitutional and Administrative Law

there is authority, although it is unreliable, that a reasonable belief

that an order is lawful is a defence (see R. v. Smith (1900); Keighley v.

Bell (1866) 4 F and F 763 at 790). The matter probably depends upon

the particular legal context, in particular the extent to which intention

or negligence is an ingredient of the offence.

Military law includes a code of offences triable by courts martial.

Courts martial follow a procedure analogous to that of an ordinary

court and there is a right to legal representation. However, their mem-

bers and prosecutors are internally appointed. Courts martial are

supervised by the ordinary courts (Grant v. Gould (1792)). There is also

a Courts Martial Appeal Court composed of ordinary civil judges.

Thus military law is integrated into the general system of justice (see

Courts Martial (Appeal) Act 1968).

The Armed Forces (Discipline) Act 2000 has increased the protec-

tion given to persons accused under military law. This includes limits

on the power to detain without charge, a right to elect a proper court

martial rather than an informal hearing by the commanding officer and

a right of appeal to an independent appeals court in respect of summary

offences tried by the commanding officer. These measures were neces-

sary in order to comply with the European Convention on Human

Rights, particularly Art. 6 which confers a right to a fair trial before

an impartial judge, illustrating that the rule of law is an overiding

concern, at least in non-combat circumstances. For example in Findlay

v. United Kingdom (1997) it was held that the organisation of a court

martial did not offer adequate impartiality where the members of the

court were appointed by the convening officer and there was an inter-

nal review of the sentence. Thus the Act does not go far enough

to satisfy the Convention and there seems to be a structural deficit of

independence in the court martial system (see Morris v. UK (2002)).

Military law overlaps with the general criminal law in that some

offences will be covered by both regimes. The more serious offences are

tried by the ordinary courts, and there are provisions preventing

‘double jeopardy’ that is, being tried twice for the same offence (see

Armed Forces Act 1966, ss. 25, 26, 35). In certain cases civilian employ-

ees or dependants of members of the armed forces are subject to

military law.

There is authority that rights conferred by military law, for example

actions against officers for improper disciplinary actions, cannot be

enforced in the ordinary courts even if the officer acts maliciously

(see Dawkins v. Lord Rokeby (1866); Dawkins v. Lord Paulet (1869)).

However, these cases concerned the exercise of disciplinary powers by

officers acting within their powers and so would not be actionable in

357

The Police and the Armed Forces

any event. If an officer commits a legal wrong, there is no reason in

principle why the court should not intervene. On the other hand, the

courts are likely to give weight to the need to preserve internal discip-

line and therefore to defer to the internal decision maker (see Leech v.

Parkhurst Prison Deputy Governor [1988] 1 All ER 485 at 498–501;

R. v. Ministry of Defence ex parte Smith (1996)). Where it is alleged that

a soldier has been denied a fair hearing in disciplinary proceedings the

courts are more willing to interfere (see e.g. R. v. Army Board ex parte

Anderson (1992)). Moreover the Human Rights Act 1998 is likely to

require the courts to take a more interventionist stance. For example

the decision in Smith (above) where the Court of Appeal refused to