Commentary on provisions of Act Schedule 1: Constitution of the Court Martial
This Schedule amends the AFA 2006 making changes to the constitution of the Court Martial. The Court Martial consists of a judge advocate and, in proceedings which require it, lay members. Lay members are normally service personnel, although in some circumstances they can be civilians, and prior to the AFA 2021 service personnel could only act as lay members if they were officers or warrant officers. Lay members perform a similar function to a jury in a Crown Court trial in England and Wales. They make findings on a charge by majority verdict; the judge advocate does not vote. The judge advocate and lay members together decide on sentence. The Schedule makes changes to the numbers of lay members in Court Martial proceedings, voting and qualification to be a lay member.
	The Schedule makes a number of substantive changes to the AFA 2006 along with a number of linked minor and consequential amendments, the substantive changes are:
Paragraph 1(2) amends section 155(1)(b) of the AFA 2006 to provide that, where the Court Martial sits with lay members, there will be three or six lay members. Currently, the Court Martial can sit with anywhere between three and seven lay members. Court Martial rules will set out the circumstances in which six lay members will be required for Court Martial proceedings.
Paragraph 1(4) inserts a new subsection (2A) in section 155 of the AFA 2006 by providing that a judge advocate may direct that there be a fourth lay member of the Court Martial in circumstances where there would otherwise be three lay members. These amendments would address, for example, the possibility that the Court Martial may lose a lay member due to illness or enforced isolation.
Paragraph 1(5) and (8) amends subsection (3) of section 155 of the AFA 2006 and substitutes a new subsection (9) to expand the range of service personnel qualified to be a lay member to include those of OR-7 rank. OR-7 rank means anyone of the rank of chief petty officer, staff corporal, staff sergeant, Royal Marine colour sergeant, flight sergeant or chief technician.
Paragraph 1(6) inserts a new subsection (6A) in section 155 of the AFA 2006 so that if the Court Martial is constituted with six or four lay members, Court Martial rules may provide for the proceedings to continue with only five or three lay members respectively on a direction from a judge advocate.
Paragraph 2(4) inserts a new subsection (3A) in section 156 of the AFA 2006 which bars a person who is an acting chief petty officer, staff corporal, staff sergeant, Royal Marine colour sergeant, flight sergeant or chief technician from being a lay member of the Court Martial.
Paragraph 2(5) amends subsection (4) of section 156 of the AFA 2006 to bar those of OR-7 rank from being lay members of the Court Martial, if they are members of the Military Court Service, Service Prosecuting Authority or a service police force, chaplains in the armed forces or lawyers. This extends the prohibition which already applies to officers and warrant officers.
Paragraph 3(3) to (5) amends section 157 of the AFA 2006 to bar those of OR-7 rank from being lay members of the Court Martial if they have been involved in an investigation or inquiry relating to the charge. This extends the prohibition which already applies to officers and warrant officers.
Paragraph 4(2) inserts a new subsection (A1) in section 160 of the AFA 2006 to introduce qualified majority verdicts for findings on a charge where the Court Martial consists of six or five lay members. Specifically, where there are six lay members, five must agree on the verdict. Where there are five lay members, four must agree. Where there are four lay members, three of them must agree. Where, as now, there are three, two of them must agree.