Monday, 4 April 2011

Court Martial adjourned ... the law on bias ... conscientious objection

The Court Martial - (see Armed Forces Act 2006 s.154) - sitting at Portsmouth has adjourned until 14th April whilst Judge Advocate McGrigor considers representations relating to apparent bias made to him by counsel - see Portsmouth News.  The case concerns a Royal Navy Medical Assistant Michael Lyons who has claimed conscientious objection to carrying out rifle training prior to deployment to Afghanistan.  Lyons' counsel has argued that there could be an appearance of bias as opposed to actual bias because, in 2004 the judge advocate had acted as prosecutor for the Royal Air Force in the trial of a Muslim air reservist who absented himself from duty in Iraq.

The Court Martial comprises
a Judge Advocate who sits along with a panel of so-called "lay members" who are serving officers or warrant officers.  The composition of the court is set out in section 155 of the 2006 Act. 

Bias:  May be either actual or apparent.  The judiciary is very keen to avoid even an appearance of bias.  The test is set out in case law and was quite recently summarised by the House of Lords (in relation to Police Officers serving as jurors) in Abdroikof [2007] UKHL 37 - Lord Bingham at para.14.   The legal test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

Conscientious objection:   The Military Service Act 1916 provided for conscription aimed at meeting the mounting losses during World War 1 and also permitted conscientious objection though, in practice, the process was very difficult.  The history of this is interesting and is discussed in considerable detail on the Peace Pledge Union website.  The well-known Member of Parliament Fenner Brockway was among the earliest objectors.  Conscription no longer exists but serving personnel who wish to claim conscientious objection are able to refer the matter to the Advisory Committee on Conscientious Objectors - (see here) - which has been in place since 1970.

The Armed Forces Act 2006:  This set down a single code of military law applicable to all three services.   The offence of disobedience to a lawful command is in section 12.   The offence carries a maximum punishment of 10 years imprisonment.  The Court Martial may award other punishments such as dismissal from Her Majesty's service etc. - see s.164  of the Act.  In 2006, Flt.Lt. Kendall-Smith, an RAF doctor, was sentenced to 8 months imprisonment for refusing to serve in Iraq.

The European Court of Human Rights and Conscientious Objection:  A useful factsheet on this subject is available on the website of the European Court of Human Rights.


  1. Fenner Brockway, now there's a name from the past. In 1922 the Hobhouse and Fenner Brockway report argued strongly for a system of payment for prison work. They concluded that prisoners should compete with free labour, and that it should be done under Trade Union conditions.

  2. Stephen Brockway MA had become a Quaker and endured imprisonment as a conscientious objector. Along with Fenner Brockway he wrote "English Prisons Today" (1922) being the report of the Prison System Enquiry Committee. A further study of conscientious objection is "These strange criminals: an anthology by conscientious objectors from the Great War to the Cold War." These are interesting documents.

  3. Tough to say whether that meets the standard of bias. Sounds like a "reasonableness" standard. Interesting Blog.



  4. Lyons was found guilty of wilful disobedience of a lawful order and sentenced to 7 months detention + demotion + dismissal from the service.

    5ht July 2011 - The Guardian