Duhaime's Law Dictionary


Court Martial Definition:

A military court set up to try and punish offenses taken by members of the army, navy or air force.

A military court set up to hear trials and, if conviction results, to sentence members of the army, navy or air force in regards to their offenses which occurred during their service.

There is no jury. Instead, the court is made up of career military officers and they are advised by a prosecutor called judge advocate. The judge advocate cannot vote as to judgment but the officers, when there are more than one, vote on a finding.

Also spelled courts-martial or courts martial.

A military court to try offences alleged against members of the Armed Forces in war or peace, although some jurisdictions do not allow separate military courts in times of peace.

There are significant anomalies inherent in a court martial that offend many basic tenets of justice. For example, it is customary for the Armed Forces, through it's unique judicial office called the Judge Advocate General, to appoint the judges for the trial of a soldier, but also to determine and administer the prosecution.

On the origin of the name, McDonald wrote:

"In (the) period of approximately the 11th to 15th centuries there existed a court called the Court of Chivalry (also known as the Court of the Constable and Marshal) to try matters of honour, civil matters such as contracts made outside the country and military offences committed outside the country that were beyond the jurisdiction of the common law courts. The Lord High Constable and his second-in-command, the Earl Marshal, were members of this court. The Court of Chivalry fell into decline over the years as its jurisdiction was restricted. Its principal officer, the Lord High Constable, permanently disappeared when Henry VIII beheaded the incumbent, the Duke of Buckingham, in 1521. The Earl Marshal took over responsibility for the trial of military offences. The system of trial, the court martial (Marshal's Court), took its name from his office."

REFERENCES:

  • Armed Forces Act 1996, United Kingdom Legislation
  • Duhaime, Lloyd, "Military Justice" (Ottawa: Canadian Bar Association, The National), April 1991.
  • Duhaime, Lloyd, Military Justice: Less of an Oxymoron, June 10, 2009
  • McDonald, R., A., Canada's Military Lawyers (Ottawa: Office of the Judge Advocate General, 2002), page 3.
  • Uniform Code of Military Justice, US Code, Title 47

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