H & J [2019] EWCA Crim 1863
An application was made for leave to appeal against a ruling of the Judge Advocate General in a preliminary proceeding in the Court Martial.
The two applicants were due to stand trial for conspiracy to fraudulently evade the duty payable on duty-free cigarettes. They contended that the Crown’s case was insufficient for a board, properly directed, to safely convict them and should be dismissed. Prior to arraignment, they applied for leave to apply to dismiss the case against them. It was submitted that Rule 26 of the Armed forces (Court Martial) Rules 2009 permitted a judge advocate to apply the provisions of paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998.
The Judge Advocate General ruled that there was no express power in the Armed Forces Act 2006, or any other legislation, for a judge advocate to dismiss a charge before a Court Martial. He noted the power to dismiss contained in the Crime and Disorder Act did not apply to a Court Martial and Rule 26 could not be used to permit the reading across of any statutory provision.
Held: The difficulty with the applicant’s argument on importing the provisions of the 1998 Act is that it is dealing with a different process. There is no longer a residual jurisdiction to test the strength of a prosecution case at a summary hearing as there once was. That is now done in the Crown Court by application under paragraph 2 of Schedule 3. It may be open to the defence to challenge the sending of the case as an abuse, but in general, the magistrates have a duty to send. The Court Martial procedure is different; there is no summary sending of cases from the magistrates’ court to the Court Martial.
Rule 26 has a saving provision. If the judge advocate is unable to determine how comparable proceedings would be conducted in comparable circumstances, he must ensure the proceedings are conducted in such a way as appears to him to be in the interests of justice.
Rule 25 does not provide a route to terminate proceedings where it is in the interest of justice to do so. The question is whether Rule 26 provides an answer, and it does. There is no Service reason for depriving a Service defendant of his right to dismiss, on the basis that the evidence is insufficient.
“A judge advocate must take into account in preliminary Court Martial proceedings how to conduct those proceedings; and how comparable proceedings would be conducted in comparable circumstances in the Crown Court. The answer is that an application would be made under paragraph 2 of Schedule 3 to the 1998 Act. That provision does not apply to a Court Martial, but a judge advocate must ensure that a comparable process be conducted in comparable circumstances.”
Leave was granted, and the Judge Advocate General’s order was reversed. The case was directed to be listed before a judge advocate to hear the application to dismiss.