Military courts are no longer intimidating, ceremonial occasions - thanks to The Human Rights Act.

Chris Baker finds out why servicemen and women are enjoying better rights

Military courts in England and Wales are catching up with their civilian counterparts, but not with the speed and precision for which our armed forces are renowned, according to lawyers who work in courts martial.

The advent of the Human Rights Act 1998, along with recent attempts by the military to ensure members of the armed forces are aware of their rights, all mean that courts martial are in a state of flux.

The military courts could well become a growth area for criminal defence solicitors - but they will have to know their brigadiers from their privates.

The Ministry of Defence does not keep records of how many courts martial are held every year across the armed forces.

'The army, navy and Royal Air Force (RAF) all have their own procedures and all deal with it individually,' a spokeswoman says.

But Forces Law, an umbrella organisation for lawyers working with the military, predicts that recent cases will mean the number of courts martial will inevitably increase.

One of the most recent rulings affected the Royal Navy.

The European Court of Human Rights ruled in Grieves v the United Kingdom that the use of serving naval officers as judge-advocates was unlikely to result in as fair a hearing as the use of civilians in army and RAF cases (see [2004] Gazette, 15 January, 4).

'The naval board had uniformed officers prosecuting, and uniformed officers usually defend as well,' says Justin Hugheston-Roberts, a partner at Wolverhampton firm Rose Williams & Partners and former chairman of Forces Law.

'It's also presided over by a serving naval officer.

The army and RAF are different.

They have a uniformed board - or jury - and are presided over by a civilian.'

But now civilian naval judge-advocates are appointed by the same body responsible for appointing them to the army and RAF courts martial, wherever on the globe the navy holds the hearing.

'It's going to place tremendous pressure on the judicial advocate-general [who makes the appointments],' Mr Hugheston-Roberts predicts.

'There are about 60 naval courts martial a year that will have to be looked at.'

In the past, there had been concerns that officers serving on courts martial would consider themselves obliged to bring a ruling that would please their senior officers.

This was because every member of the armed services has a confidential report written about them by their superiors every year, and going against the grain in a military court might be noted and used as a bar to promotion.

Now, officers who sit on hearings cannot have anything written about those hearings in their annual reports.

'It's made it more impartial,' says Mr Hugheston-Roberts.

'It's demilitarised the courts martial.

This is part of a wider picture - swords and medals are no longer worn and people are not marched up to the dock any more.'

And, in recent weeks, a new body - the Military Court Service - has amalgamated the RAF and army court services.

It remains to be seen whether the navy - which has traditionally seen itself as completely separate from the armed forces - will follow suit.

Mr Hughestone-Roberts adds that the Mental Health Act 2002 will soon be applicable to the courts martial.

At present, the 1964 legislation applies.

'[Change] is much smoother on the civilian side, but the armed forces are codified,' he explains.

'There are a lot of rules and regulations, so change involves an awful lot of redrafting.'

However, he says that the whole process has become far more 'user friendly' in the past two to three years.

Another recent move has created summary appeals courts (SACs), where soldiers or air force personnel have the absolute right of appeal if they have been subject to internal disciplinary procedures.

This leads to a paradox in that while armed forces personnel face stricter disciplinary rules, SAC rulings can be more lenient than Court of Appeal decisions.

They can only uphold decisions or quash them, whereas the Court of Appeal can increase the punitive element of the original ruling.

'The system is starting to give servicemen and women more rights,' says Mr Hugheston-Roberts.

'When a serviceman is arrested he or she is now given a book that sets out everything that they have to do and everything that is available to them.

That includes representation and access to documentation.'

The book has acted as an awareness-raising exercise, according to Nigel Lyons, partner at Plymouth and Exeter-based firm Foot Anstey Sargent.

'One of the hardest things to get our clients to understand, particularly in the early stages, is that they have the right to silence,' he says.

In a working culture where a sergeant-major can demand an explanation by shouting 'And that's an order', it can be difficult for the person being shouted at to resist, he adds.

'Obviously, when it comes to a criminal investigation, the law says it's not quite like that,' Mr Lyons adds.

Foot Anstey Sargent is taking fewer courts martial instructions since military institutions in its area have closed and bases have shifted.

Fewer services personnel means fewer disciplinary cases.

But there are still fistfights and other cases of personnel getting into trouble while off base.

The sanctions off base are still different to the sanctions if a squaddie punches an officer on the nose, however.

Mike Davies, a partner with Shrewsbury-based firm Wace Morgan, is more involved in cases of personnel rights under the Army Act and Air Force Act 1992.

'We are seeing members of the armed forces being discharged, and if a member considers the reasons for the discharge unfair, you can use procedures in the Acts to complain about that,' he says.

Mr Davies agrees that members of the armed forces now know their rights.

'A few years ago, when they were arrested or charged, they were unaware that legal representation was available to them,' he adds, including legal aid.

But it is not all plain sailing for solicitors who work with the armed forces.

One solicitor-advocate, speaking anonymously, explains that the beleaguered legal aid system adds to the problems.

'The legal aid rates are not good at all,' he complains.

'We have had cases with clients in Germany and Gibraltar but the legal aid rates mean it is not economical for us to travel - that's not to say they haven't been given representation, but it's something we are constantly careful of.'

He also points out that a strict level of privacy within the armed forces can make it difficult.

The top brass often want disciplinary matters kept out of the public eye - and usually manage this apart from in high-profile cases - and will want matters dealt with as quickly and as quietly as possible.

'It's very regimented and there is a sense of hostility towards us coming in as civilian defence solicitors,' he adds.

The 'war on terror' and resultant emphasis on security can make it more difficult to gain access to installations in order to meet with clients, the solicitor-advocate adds.

This, in part, is what solicitors identify as a key issue of working in the military courts: you need to know the terminology, traditions and military culture.

'I think it's very important to have an understanding of the military system,' Mr Davies says.

'A member of the armed forces, in the early stages, is only aware of the forces' various disciplinary rules.

So, somebody coming in as a lawyer must observe and be aware of how the military system works, such as the rank structure, so they can have a proper face-to-face conversation with a soldier or a sailor.'

'The solicitor will have to be an accomplished and skilled advocate because they will be up against accomplished and skilled advocates,' Mr Hughestone-Roberts adds.

'You will have to understand the military ethos and ensure that the case will be managed on that basis.

You will not be dealing with lay bench magistrates.'

Not a sector, then, to go in with all guns blazing, unless you genuinely know how to fire them.

Forces Law can be contacted on 0845 601 1260.

Chris Baker is a freelance journalist