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|Judgments - Regina v. Martin (On Appeal from Her Majesty's Courts-Martial Appeal Court)
Lord Hope of Craighead Lord Clyde
(ON APPEAL FROM HER MAJESTY'S COURTS-MARTIAL APPEAL COURT)
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Lloyd of Berwick. For the reasons which he gives I would dismiss the appeal.
LORD SLYNN OF HADLEY
The facts of this case are fully set out in the judgment of the Courts- Martial Appeal Court and I do not repeat them.
As a matter of first impression it seemed to me disturbing and indeed wrong in principle that a nineteen year old civilian, albeit the son of a serving soldier at the time of the murder he was alleged to have committed in Germany, who had with his father returned to England more than a year before trial, should be sent back to Germany for trial by court-martial and thereby be deprived of the right, or at the least of the opportunity, of trial by jury. That impression was only underlined by (a) my doubts as to whether the commanding officer had ever really considered whether pursuant to section 77A of the Army Act 1955 proceedings should, in the interests of the better administration of justice, be taken against the accused otherwise than under the Act, namely by proceedings before the ordinary courts in England; and (b) the fact that it was not shown that there was an opportunity for representations to be made by or on behalf of the accused before decisions were made by the commanding officer and by higher authority that the case should proceed before a court-martial.
It is, however, clear that Parliament has provided for a court martial to be held in the circumstances of this case and, after full argument on both sides, I do not consider that it has been shown that there was any breach of the rules required to be followed or that there has been any abuse of process entitling the Courts-Martial Appeal Court or your Lordships' House to interfere. In addition weight must be given to the fact that it seems that there would have been great difficulty in having the evidence of at any rate some of the crucial German witnesses before the English civilian court; trial somewhere there clearly had to be.
Accordingly, and despite my anxiety about the case, I agree that for the reasons given by my noble and learned friend Lord Lloyd of Berwick, whose speech in draft I have had the advantage of reading, the appeal should be dismissed.
I add, however, that whilst trial by court-martial abroad of a serving member of the armed forces, who has returned to England, may perhaps readily be justified, I hope that if circumstances analogous to the present where a civilian is involved arise again it will be shown clearly that the commanding officer has considered the exercise of his discretion under section 77A of the Army Act 1955 and what are the reasons for his decision.
On 8 February 1994 the appellant, Alan Martin, then aged 17, was charged with the murder of Vanessa Chappell. The crime was committed in Germany. On 3 May 1995 he was convicted after a trial by court-martial held at Mönchengladbach. He appealed to the Courts-Martial Appeal Court on a number of different grounds, only one of which is now relevant, namely, that his trial by court martial was an abuse of process. It was not suggested that there was any irregularity in the conduct of the proceedings, nor that the prosecution had acted in bad faith or with impropriety. What is suggested is that he should never have been tried by a court-martial at all. He should instead have been tried in England before a judge and jury, pursuant to section 9 of the Offences Against the Person Act 1861.
The Courts-Martial Appeal Court found that the appellant had been tried strictly in accordance with a procedure prescribed by Parliament. The proceedings could not be stigmatised as abusive. Accordingly they dismissed Mr. Martin's appeal, but certified the following question of law:
Mr. Martin now appeals against the decision of the Courts-Martial Appeal Court by leave of your Lordships' House.
The background is straightforward. At the time of the murder the appellant, a civilian, was living with his family in Germany. His father, Corporal Martin, was serving with British Forces at Rheindahlen. It is common ground that while in Germany the appellant was, as a member of Corporal Martin's family, subject to military law: see the Army Act 1955, section 209 and Schedule 5, paragraph 5. He was therefore correctly charged in Germany with having committed the civil offence of murder, contrary to section 70 of the Army Act. On 8 February 1994 the Commander of the Rhine Garrison appointed the Commander of Rheindahlen Support Unit to act as the appellant's commanding officer. It is to be presumed that the commanding officer carried out an investigation in accordance with rule 7 of the Rules of Procedure (Army) 1972. At all events the commanding officer decided to refer the case to higher authority with a view to the appellant being tried by court-martial. The higher authority in accordance with section 79(1) of the Act thereupon took the prescribed steps with a view to a trial by court-martial in accordance with section 79(3) of the Act.
In the meantime, Corporal Martin had been posted to England. He returned with his family on 24 March 1994. The appellant remained behind in Germany until mid April 1994, when he too was returned so as to be near his family. He was detained at the Military Corrective Training Centre at Colchester.
On Corporal Martin's return to England, the appellant would ordinarily have ceased to be subject to military law. But section 131 of the Act provides an exception. The appellant remained subject to military law in respect of offences committed while in Germany, provided his trial started within six months. Since it seemed unlikely that the trial could start by 24 October (six months after his father returned to England) it was necessary to obtain the consent of the Attorney-General under section 132(3A).
On 14 June 1994 the Attorney-General was asked for his consent. It was explained that the trial was to take place in Germany, since many of the witnesses were German and they could not be subpoenaed to attend a trial in England. It was also explained that this was a case in which the British military authorities had jurisdiction by reason of the German Government having waived its primary right to exercise jurisdiction under the N.A.T.O. Status of Forces Agreement (Cmnd. 9363). On 10 December the Attorney- General gave his consent to the prosecution of the appellant by court-martial.
In due course the court-martial was convened, and the appellant was returned to Germany to stand trial. He had been in receipt of legal aid since 10 February 1994. The trial commenced on 21 April 1995. On the first day of the trial Lord Thomas made a submission under rule 36 of the Rules of Procedure that the court-martial had no jurisdiction. One of the grounds for this submission was that the Attorney-General's consent had been given too late. Another ground was that it was an abuse of process to bring the appellant from England, where he was eligible for trial by jury, to stand trial by court-martial in Germany. On 24 April 1995 the Judge Advocate ruled against the appellant, whereupon Lord Thomas asked for an adjournment. He said that he wished to apply for judicial review of the Judge Advocate's ruling, as well as the Attorney-General's consent. The application for an adjournment was refused. Thereafter a number of witnesses were called, including expert evidence from four German witnesses, one of whom had carried out D.N.A. testing of the appellant and the victim. The trial was concluded on 3 May 1995, when the appellant was convicted.
What is the basis for Lord Thomas's submission that there was an abuse of process? In the end it came down to this: that the trial of a young civilian by court-martial was inherently unfair and oppressive. Instead of being tried by a jury of his peers, the court-martial would consist of five senior officers and two civilians. It was said that the atmosphere in such a court would be very different from that of an English court, and for that reason, presumably, there was a risk that the appellant might not do himself justice. In particular it was unfair and oppressive that he should be returned to stand trial in Germany after spending many months in England, and after his father had ceased to be subject to military law. Lastly, the appellant could only be convicted in England by a majority of at least 10 to 2, whereas a simple majority suffices in a trial by court-martial.
Turning to the authorities, Lord Thomas relied on an observation of Neill L.J. in Reg. v. Bow Street Metroplitan Stipendiary Magistrate, Ex parte Director of Public Prosecutions (1992) 95 Cr.App.R. 9, 16 that the law on abuse of process is still in a stage of development: see also Neill L.J.'s remarks to the same effect in Reg. v. Beckford (Anthony)  1 Cr.App.R. 94. In ruling that there had been no abuse of process, the Judge Advocate said:
In choosing these words the Judge Advocate was clearly basing himself on the judgment of Sir Roger Ormrod in Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, 168-169. But Lord Thomas submits that this is too restrictive. The law has moved on since Ex parte Brooks. Abuse of process is no longer confined to cases where the prosecution has misused the process of the court: see Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett  1 A.C. 42.
I agree with Lord Thomas that the categories of abuse of process, like the categories of negligence, are never closed. Ex parte Bennett broke new ground. I agree also that each case of alleged abuse of process must be considered by reference to its own facts and circumstances, as indeed Neill L.J. pointed out in Beckford. The decisive factor in the present case is that Parliament has itself approved trial by court-martial as a mode of trial which is appropriate for civilians in certain circumstances, and for juveniles who, like the appellant, have been charged with murder: see section 71A of the Act. Since the procedure has been approved by Parliament, it would seem obvious that the carrying out of the procedure cannot of itself be categorised as an abuse of process. In so far as the certified question is capable of a generalised answer, I would hold that the answer must be no.
But Lord Thomas does not leave the matter there. He draws attention to section 77A of the Act which provides:
Lord Thomas submits that the commanding officer ought to have exercised his power under section 77A to stay proceedings "in the interests of the better administration of justice" so as to allow the appellant to be tried in England. It appears that the power conferred by section 77A has seldom, if ever, been exercised since the section was first enacted in 1981. But the power is there, and the question is whether the failure to exercise the power in this case was an abuse of process.
There are a number of difficulties in the way of Lord Thomas's submission. In the first place it is not clear to me that the German waiver of jurisdiction under the Status of Forces Agreement (Cmnd. 9363) extended as far as to allow the appellant to be tried in England. It may be that the German authorities would have sought to reclaim jurisdiction if they had been told that the trial was not to take place by court-martial in Germany. We do not know.
Secondly, we know almost nothing of what took place during the commanding officer's investigation. Lord Thomas relies on this absence of information as itself pointing to an abuse of process. But this goes much too far. If there was to be an attack on the proceedings before the commanding officer, it was surely for the appellant to lay the evidential foundation for that attack. There is no presumption of irregularity.
Assuming the commanding officer directed his mind at all to the possibility of a trial in England instead of Germany, the question that then arises is whether he can be criticised for choosing Germany. Lord Bingham of Cornhill C.J. in giving judgment in the Courts-Martial Appeal Court pointed to the greater availability of factual witnesses in Germany. This was, he said, a legitimate reason for favouring a trial there. I respectfully agree. But it was not just the large number of factual witnesses who were to be found in Germany. The most important of the expert witnesses were also German, including Professor Weber who carried out the post mortem and Dr. Meyer who carried out D.N.A. testing on the appellant and the victim. The latter was a crucial witness for the prosecution. There was reason to suppose that he would not be willing to give evidence in England. In a criminal trial fairness to the accused has to be balanced against fairness to the prosecution. On the exiguous facts before us it is by no means clear that the balance of fairness came down in favour of trial in England.
But even if it did, that would not be an end of the matter. It is not enough that the commanding officer ought to have stayed the proceedings under section 77A "in the interests of the better administration of justice." It must be shown that his failure to do so was an abuse of process.
In Bennett's case Lord Griffiths said that in the field of criminal law the judiciary ought to be willing to "refuse to countenance behaviour that threatened either basic human rights or the rule of law." In that case the assumed facts were that a citizen of New Zealand was brought forcibly to England from South Africa in order to stand trial for certain criminal offences, in disregard of the ordinary procedures for securing his lawful extradition, and in breach of international law: see per Lord Bridge of Harwich, at p. 64. The Divisional Court refused the defendant's application to stay the proceedings on the ground that it had no power to intervene. But the House allowed the defendant's appeal, holding that the High Court has a wide responsibility for upholding the rule of law where, on the assumed facts, there had been a deliberate abuse of extradition procedures.
I have referred to the facts of Ex parte Bennett since it was the case on which Lord Thomas relied most strongly. But my brief account of the facts shows how remote they are from those of the present case. It could not possibly be said that the decision not to stay proceedings by court-martial in Germany, where the crime was committed, was contrary to the rule of law, or that it deprived the appellant of any of his basic human rights. Nor could it be said to be "something so unfair and wrong" (see per Lord Lowry in Hui Chi-Ming v. The Queen  1 A.C. 34, 57) that the courts ought to intervene. In my view the decision of the commanding officer not to stay the proceedings under section 77A, but to refer the case to higher authority, was one which was fully open to him under a procedure prescribed by Parliament. It may have been the wrong decision. We do not know enough to say. But it was not an abuse of process, or anything like it.
Lord Thomas advanced the same arguments in relation to the decision of the higher authority not to refer the case back to the commanding officer under section 80, with a direction to stay. But for the reasons already given, which I need not repeat, I do not agree. The same also applies to the decision of the Attorney-General to grant his consent under section 132(3A).
I come to Lord Thomas's final argument. He accepted that it was not open to him to challenge any of the above decisions by way of judicial review. But he argued nevertheless that the appellant ought to have had the opportunity to make representations before those decisions were reached. He relied in that connection on the speech of Lord Mustill in Reg. v. Secretary of State for the Home Department, Ex parte Doody  1 A.C. 531 at 560. It does not appear whether the appellant did in fact have an opportunity to make representations at an early stage. But in my view it does not matter. For Lord Thomas took the opportunity to make representations on behalf of the appellant at the appropriate time, namely, at the commencement of the hearing, after arraignment and before plea. Rules 26 to 40 of the Rules of Procedure contain detailed provisions for the procedure to be followed at the commencement of a hearing. Thus under Rule 27 the accused has an opportunity to object to the composition of the court. Under Rule 37 he can object to a charge on the ground that it is not correct in law. Under Rule 38 he can raise a plea in bar. Rule 36 provides as follows:
As already mentioned, Lord Thomas raised a plea to the jurisdiction of the court under Rule 36 on the ground that the Attorney-General did not give his consent in time. (The plea should probably have been made under Rule 38; but this is of no consequence.) This was the appropriate occasion for Lord Thomas to submit, as he did, that trial by court-martial was an abuse of process. The Judge Advocate ruled against him, and his ruling was upheld by the Courts-Martial Appeal Court on appeal against conviction.
In Ex parte Doody, by contrast, the prisoner had no opportunity to make any representations to the Secretary of State as to his earliest release date before the date was fixed under section 61 of the Criminal Justice Act 1967, and there was no appeal from the Secretary of State's decision. Nothing which Lord Mustill said about the fairness of such a procedure, at pp. 560 et seq., throws any doubt on the fairness of the procedure under rules 36 to 38 of the Rules of Procedure. The inability of the appellant to make representations at an earlier stage of the prosecution was not an abuse of process.
Finally I should mention that even if the Courts-Martial Appeal Court had been satisfied that there was an abuse of process, it would still have been necessary for the court to dismiss the appeal, unless persuaded that the conviction was unsafe. For the Courts-Martial Appeal Court is a creature of statute, and has no power to allow appeals save in accordance with section 12(1) of the Courts-Martial (Appeals) Act 1968 as substituted by section 29(1) of and paragraph 5 of Schedule 2 to the Criminal Appeal Act 1995. We do not have all the material that was before the court below. But nothing in such material as we have makes me think that the conviction was unsafe. I would dismiss the appeal.
LORD HOPE OF CRAIGHEAD
At first sight the decision to prosecute the appellant at a general court-martial on a charge of murder was quite inappropriate. He was a civilian and was aged only 17 at the time of the alleged murder. He had been detained for a year in England while awaiting his trial, and he was no longer subject to military law. Although the crime was committed in Germany, his trial could have been held in the Crown Court under section 9 of the Offences against the Person Act 1861. Instead he was taken back to Germany so that he could be court-martialled there. As Lord Bingham of Cornhill C.J. said when delivering the judgment of the Courts-Martial Appeal Court, it seems plain with the benefit of hindsight that a trial could have been conducted in England without undue difficulty.