The US-UK relationship is being tested again by two high-profile legal cases in which American military personnel were tried by US authorities over alleged offences that took place on British soil.
What were the cases?
Four women and a 16-year-old girl accused US airman Hannes Marschalek of indecent exposure in 2022, while he was stationed at RAF Lakenheath in Suffolk, the largest US airbase in the UK, said The Guardian.
Cambridgeshire police initiated the investigation, but the case was turned over to American forces three weeks later. Court martial documents show that in July 2022, Marschalek texted two friends to say he “definitely just flashed a couple ladies walking from the train. LOL.”
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Marschalek accepted a plea bargain and was dismissed from the air force by a military judge and sentenced to two months in a correctional facility at Lakenheath. However, in April this year a US military appeal court dismissed the guilty verdict on the grounds that prosecutors had charged him under the wrong offence. He remains on the sex-offender registry in the US, but had he been “prosecuted in the English criminal courts, Marschalek would have faced up to two years in jail”.
In December 2023, Sarah Steele accused Jacob Wulfson, a US air force captain also based at Lakenheath, of drugging, assaulting and strangling her after meeting via a dating app. Steele, a University of Cambridge academic, claimed that the subsequent court martial heard testimony about “how many people he’d killed, supposedly to get him a lower sentence for committing a serious violent crime against me”, said the BBC.
Wulfson was convicted of strangulation, dismissed from the military and given “six months’ detention”, but was cleared of sexual assault by an “all-male panel” of air force officers.
How does a court martial work?
A court martial is a legal proceeding undertaken by the military to try personnel accused of wrongdoing within a military context. In the US, the trials are governed by the Uniform Code of Military Justice, which in addition to criminal offences, includes some perceived moral transgressions such as infidelity.
The US military justice system has a “distinct legal framework and is separate from British civilian courts”, said ITV News. There are also significant deviations from US civilian law, said law professor Joshua Kastenberg on The Conversation. Judges are “uniformed officers” who are “subject to the chain of command”. A court martial also only needs a two-thirds majority to establish guilt, instead of unanimity, with a jury panel “made up of military personnel who outrank the accused service member and are picked to serve by senior commanding officers”.
Why weren’t the cases tried in the UK?
American forces in the UK are governed by the 1951 Nato Status of Forces Agreement, which was incorporated into British law in the Visiting Forces Act 1952. As well as outlining visa exemptions and the right to bear arms, this “obscure” agreement allows the US government to prosecute overseas military personnel under certain conditions, said The Guardian. Traditionally, this has covered offences committed while on duty, or against a member of the US military or their dependents.
Outside those criteria, the British police have jurisdiction. However, in practice, the “process is ambiguous”. In the cases involving Marschalek and Wulfson, local British police handed control over to the US. The US military is claiming a “much wider jurisdiction – and British police and prosecutors are allowing them to do it”.
This week, Justice Secretary and Deputy Prime Minister David Lammy told the Commons officials were “working across government to establish the full facts” of the two cases, said the East Anglian Daily Times.
The prime minister’s spokesperson said that Wulfson’s was “clearly a deeply distressing case”. It was “very concerning that a case like this never reached the CPS” and was “heard in front of an all-male panel” of US air force officers.
A US air force spokesperson said it is “dedicated to working transparently with our British partners to ensure the fair administration of justice”.
