H & J [2019] EWCA Crim 1863
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Regina v H & J [2019] EWCA Crim 1863 concerned an appeal against a ruling of His Honour Judge Blackett (Judge Advocate General) in the Court Martial sitting at the Military Court Centre, Catterick, on 4 June 2019 refusing to hear an application to dismiss the case before arraignment. The Court Martial Appeal Court granted leave to appeal and reversed the Judge Advocate General’s ruling.
The applicants were due to stand trial in the Court Martial on a charge of committing a criminal offence contrary to section 42 of the Armed Forces Act 2006, namely conspiracy fraudulently to evade duty payable on duty-free cigarettes, contrary to section 1 of the Criminal Law Act 1977. They denied the charges and contended that the Crown’s case as served was insufficient for a board, properly directed, safely to convict them. The applicants applied prior to arraignment for leave to apply to dismiss the case against them and 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, which applies to cases sent for trial to the Crown Court, to Court Martial proceedings.
The Judge Advocate General ruled that the applicants could not make an application to dismiss prior to arraignment. He held that Rule 26 gave power to a judge advocate to ensure that proceedings were conducted in a certain way but did not give him power to create a process not contained in the Armed Forces Act 2006. Since there was no statutory power for the Court Martial to dismiss a charge before arraignment, there were no proceedings relating to dismissal to be conducted. He found that there was no mechanism by which paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 could be imported into the Court Martial. He further held that a judge advocate had power under Rule 25(3) of the 2009 Rules to terminate proceedings if he considered it in the interests of justice to do so. Rule 25(3) could therefore be used at the start of trial proceedings, before the board was sworn, to terminate the trial proceedings if the judge advocate was persuaded that the prosecution evidence would not be sufficient for the defendants to be properly convicted. However, there was no power to terminate trial proceedings until the trial commenced. He also ruled that termination under Rule 25 would not amount to an abuse of process for the Director to attempt to continue proceedings because Rule 25(6) stated that such termination would not bar further trial in relation to the same charge or charges.
On appeal, Mr Bolt for the applicants submitted that the intention of Rule 26 was to treat defendants in the Service Justice System in a similar way to the Criminal Justice System, which was particularly important when a Court Martial dealt with alleged criminal rather than disciplinary offences. He argued that there must be good reason to justify such a difference and that there was no good Service reason for preventing an application to dismiss from being heard. He submitted that Rule 26 was sufficiently wide to enable a judge advocate to import a process analogous to that in the Crown Court. He contended that prior to the passing of the Armed Forces Act 2006 there had been a means by which a defendant could make an application to dismiss informally to the convening officer prior to arraignment and that there was no reason why that right should be assumed to have been implicitly removed by the change in the statutory regime.
Mr Edwards for the Service Prosecuting Authority submitted that the Judge Advocate General was right, essentially for the reasons he gave. He argued that to interpret Rule 26 as the applicants contended would enable a judge advocate to usurp the role of the legislature. He also submitted that there were marked and material differences between the Service Justice System and the Criminal Justice System. He contended that there was adequate protection within the Service Justice System where a case was weak or vexatious through the termination of proceedings under Rule 25 or judicial review of a decision to prosecute.
Lord Justice Simon, delivering the judgment of the court, stated that Rule 25 on its face was concerned with difficulties arising in relation to the constitution of the board. Sub-rules (1) and (2) required a judge advocate to terminate proceedings in the circumstances there described, and sub-rule (4) required the Judge Advocate General to terminate proceedings if the judge advocate died. The court held that Rule 25 must be read ejusdem generis, taking its meaning from the context. Sub-rule (3) was a discretionary power which might have to be applied where the case did not fall specifically within sub-rules (1) and (2) but where it might be in the interests of justice to terminate the proceedings, for example where there might be uncertainty about the competence or impartiality of a board. The consequences of any of these essentially administrative decisions did not bring the proceedings to an end, as was clear from sub-rule (6). The court held that the Judge Advocate General fell into error in concluding that Rule 25(3) provided a stand-alone or residuary jurisdiction at the arraignment stage, as both counsel accepted.
The court turned to Rule 26, which provided that subject to any other enactment the judge advocate should ensure that the Court Martial proceedings were conducted in a way that most closely resembled the way in which comparable proceedings would be conducted in comparable circumstances in the Crown Court, with the reservation that if he or she was unable to determine how comparable proceedings would be conducted in the Crown Court in comparable circumstances, he or she should conduct the proceedings in such a way as appeared to him to be in the interests of justice. The court acknowledged that the difficulty with the applicants’ argument based on importing the provisions of paragraph 2 of Schedule 3 to the 1998 Act was that it was dealing with a different process: section 51 and 51A concerned cases which were sent from the magistrates’ court to the Crown Court. There was no longer a residual jurisdiction to test the strength of the prosecution case at a summary hearing. That was now done in the Crown Court, by an application under paragraph 2 of Schedule 3. The court noted that the Court Martial procedure was different in that there was no summary sending of cases from the magistrates’ court to the Court Martial.
The court held, however, that this was not the end of the matter because Rule 26 had a saving provision: if the judge advocate was unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstances, he must ensure that the proceedings were conducted in such a way as appeared to him to be in the interests of justice. Since Rule 25 did not provide a route to terminate proceedings where it was in the interests of justice to do so, the question was whether Rule 26 provided an answer. The court held that it did. The court saw no Service reason for depriving a Service defendant of his right to apply to dismiss on the basis that the evidence was insufficient. It saw no reason to assume that such rights as existed, albeit in a different form, should have been removed from Service defendants where an application was justified on the basis of the insufficiency of the evidence.
The court held that 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 was that an application would be made under paragraph 2 of Schedule 3 to the 1998 Act. That provision did not apply to a Court Martial, but a judge advocate must ensure that a comparable process could be conducted in comparable circumstances. The court emphasised that nothing it had said in the judgment should lead to the conclusion that the rules could apply so as to import substantive law into the Court Martial proceedings. The court was concerned with a procedural issue.
In short, the court granted leave to appeal and reversed the Judge Advocate General’s order, holding that Rule 26 of the Armed Forces (Court Martial) Rules 2009 enabled a judge advocate to hear an application to dismiss before arraignment based on insufficiency of evidence, and directed that the case be listed before a judge advocate to hear the application.
R v Galbraith [1981] Crim LR 648
Alexander Blackman (Marine A) [2014] EWCA Crim 1029
Twaite [2010] EWCA Crim 2973