R (on the application of Shuttlewood) v Ministry of Defence [2019] EWHC 1209 (Admin)

R (on the application of Shuttlewood) v Ministry of Defence [2019] EWHC 1209 (Admin) concerned a renewed application for permission to apply for judicial review of the decision of the Ministry of Defence to try Mr Shuttlewood by court martial in reliance upon a decision of the Solicitor General dated 17 November 2014 extending the statutory time limit for prosecution under the Armed Forces Act 2006. Mr Justice Supperstone refused permission.

Mr Shuttlewood had been arrested and tried by court martial in 2015 for sexual offences, some involving children, committed in 2003, 2004 and 2009. He was convicted and sentenced to ten years’ imprisonment. He had never been a serving member of the Armed Forces but at the time the offences were committed was a civilian living in Germany and subject to service jurisdiction and trial by court martial. He applied to appeal his convictions to the Court Martial Appeal Court but leave to appeal was refused by the President of the Queen’s Bench Division, Singh J (as he then was) and Holgate J on 20 July 2016.

Mr Khan advanced two grounds of challenge on behalf of Mr Shuttlewood. First, he contended that the Solicitor General’s fiat dated 17 November 2014 was ultra vires section 61(1) of the Armed Forces Act 2006 because it was not signed in the name of the Attorney General and contained insufficient reasons. He submitted that the Solicitor General’s fiat did not contain any reasons as to why court martial was the appropriate procedure when the time limit under section 58 of the Armed Forces Act had expired. Fairness, he argued, required reasons as to why a court martial was appropriate over the right to trial by jury. He further submitted that although the Solicitor General may discharge the functions of the Attorney General, the nature of the consent was such that it must be expressed in the name of the Attorney General, even if signed by the Solicitor General for and on behalf of the Attorney General. He relied on section 1(4) of the Law Officers Act 1997, arguing that it provided good policy reasoning for the provision. Second, he contended that there had been procedural impropriety in that the Attorney General’s consent was never disclosed to Mr Shuttlewood until recently. He submitted that even if the Solicitor General’s fiat was valid consent on behalf of the Attorney General, it had not been proved that the consent was communicated to Mr Shuttlewood prior to the commencement of proceedings.

Miss Palmer, appearing for the Ministry of Defence and the Attorney General, addressed both grounds. In response to the first ground, she drew attention to the terms of section 1 of the Law Officers Act 1997. Section 1(1) provided that any function of the Attorney General may be exercised by the Solicitor General, emphasising the words “any function”. Section 1(2) provided that anything done by the Solicitor General in the exercise of or in connection with the function of the Attorney General has effect as if done by or in relation to the Attorney General. She submitted that section 61(2) did not require that consent is given in the name of the Attorney General, rather that a person may be charged if the Attorney General consents. This function was exercised by the Solicitor General and took effect as if done by the Attorney General. Critically, in answer to Mr Khan’s submission on section 1(4), she submitted that section 1(4) did not mean that where the Solicitor General signs a document consenting to extend time to prosecute he must do so in the name of the Attorney General. She also responded to any reliance on section 326 of the Armed Forces Act, which provided that subject to section 61(2), no enactment requiring the consent of the Attorney General or the Director of Public Prosecutions in connection with any proceedings had effect in relation to proceedings under the Act for a service offence. She submitted that this simply provided that there was no other requirement for the Attorney General’s consent and did not mean that the Law Officers Act did not apply. She further submitted that there was no requirement that the Solicitor General give reasons for his fiat. This was a matter only now raised. If the Solicitor General had been asked for reasons he may well have given reasons. However, in any event, the judicial review claim was against the Ministry of Defence, not against the Attorney General.

Mr Justice Supperstone accepted Miss Palmer’s submissions. He held that he did not consider the first ground of challenge to be arguable. He reached a similar conclusion in relation to the second ground. He held that there was no requirement that the decision to prosecute outside the time limits be communicated to a defendant in court martial proceedings. Miss Palmer had made the further point that the Attorney General’s consent was in fact referred to on a list of exhibits and the admissions at trial included the admission that Mr Shuttlewood was subject to service jurisdiction. He was represented throughout and Miss Palmer commented that if it was considered that the requisite consent was lacking, that issue could have been raised. Mr Khan observed that if the court had no jurisdiction, absence of jurisdiction could not be cured by admissions by the parties. However, the judge held that for the reasons he had given, he did not consider the challenge to be arguable.

In short, permission to apply for judicial review was refused because the Solicitor General had lawful authority under the Law Officers Act 1997 to exercise the Attorney General’s functions without signing in the Attorney General’s name or giving reasons, and there was no requirement to communicate the consent to the defendant.