|Judgment - Regina v. Martin (On Appeal from Her Majesty's Courts-Martial Appeal Court) continued|
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The decisions in this case - whether there was an abuse of process
In view of what I have said above I do not believe that the proceedings by way of court-martial in this case can be said in themselves to have been an abuse of process. For this reason I would answer the certified question in the negative. The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by any of those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe.
The decisions which were criticised in the course of the appellant's argument in this House were those of the commanding officer in regard to his functions under section 77A of the Army Act 1955, of the higher authority in regard to his functions under section 80(1) of that Act-which include a power to refer the charge back to the commanding officer with a direction to stay under section 77A-and of the Attorney-General under section 132 which deals with the limitation of time for the trial of offences under military law. It was also said that the refusal by the court-martial of an application by the defence on the first day of the trial for an adjournment for leave to seek judicial review of the Attorney-General's decision to consent to the proceedings was in itself a ground for holding the conviction to be unsafe.
I shall deal with each of these decisions in that order. Before doing so however I must express my concern at the fact that in the course of these arguments we were being drawn into matters which were not the subject of the appeal to the Courts-Martial Appeal Court and were not mentioned in the appellant's written case in this appeal. While we are able to review the legislation and rules which relate to these matters, we have been left in a state of almost complete ignorance about what was really going on as this case found its way through the procedures which have been laid down. We were shown some of the correspondence, and some other details may be gleaned from the Court-Martial Appeal Office Summary. But we do not have the evidence. No affidavits are before us from those whose decisions we were asked to bring under scrutiny. No explanations are before us in any other form of the steps which were being taken by those in authority. In this situation we can only speculate, and in the course of doing so we may be making assumptions which, if the true facts were known, would be shown to be unjustified.
Let me give just two examples to illustrate my unease. When we began the hearing I had the impression, which I believe was shared by others of your Lordships, that the person who was appointed to be the appellant's commanding officer for the purposes of this case, as he was a Wing Commander in the Royal Air Force, had no previous relationship of any kind with the appellant, whose father was an Army Corporal. In the course of the hearing however there was shown to us a copy of the Order by the Commander Rhine Garrison made in accordance with Regulation 10 of the Army Summary Jurisdiction Regulations 1972 appointing the Wing Commander as Commander Rheindahlen Support Unit to be the commanding officer. We know that the appellant's father was serving in the Support Unit at the time of the murder, and that the victim was a civil servant who was also working there before she was killed. There are many gaps in our information because we do not have a statement from the Wing Commander. But it seems quite likely that he was somebody who was known to the Martin family in his capacity as the father's commanding officer in what appears to have been a unit staffed by members of various services. The impression that he had been selected out of the blue and that he knew nothing about the family or the facts of the case seems now to be unjustified.
Secondly, we know that the appellant was detained in Colchester for about a year before he was returned to face the court-martial in Germany. At first sight it seemed to be both harsh and unreasonable for someone who was already here in this country to be sent abroad again to stand trial in a military court. But we now know that steps were taken at a very early stage to ensure that he had legal representation. We were told by Lord Thomas Q.C. in the course of his closing submissions that legal aid was extended to his junior, Mr. Blades, solicitor advocate, on 10 February 1994. This was just eight days after the murder and just two days after the Wing Commander was appointed to be the commanding officer. We also now know that the reason why the appellant was detained at Colchester and not, as he might have been, in Germany was that there were inadequate facilities for the detention of someone of his age in Germany in military custody and in order that he might be closer to his family who had by then returned to England. Here again we do not have a full account of all the circumstances, but I do not think that it would be right to make any assumptions about the manner of his treatment or the possible hardships which he might have faced on being returned to Germany without a sound basis for them in the facts.
It should not be forgotten that the appellant came from a military family and that while he was in Colchester he remained in a military environment. It may be that a court-martial was less intimidating for him than it would have been for most civilians of his age. But the really important thing was that he should be treated fairly with proper regard to his human rights from the start to the end of the whole process. On this matter it appears that the military authorities cannot be faulted. As I have said, steps were taken almost immediately to provide him with the legal representation which has remained with him throughout these proceedings, and it is agreed that the proceedings themselves were conducted in a manner which was both fair and impartial at all times. It should also be noted that, as he was detained throughout in military custody, he was at no stage in the hands of the police or the prison authorities in this country. The steps which would have had to have been gone through in order to place his case into their hands so that he could be prosecuted in a civil court in this country were not explained to us. On this matter also we were left in a state of complete ignorance.
a. The commanding officer
The appellant's case was in the hands of the commanding officer from 8 February 1994 to 2 August 1994 when he submitted the charge, after having investigated it, to the higher authority under section 79(1) of the Army Act 1955. It was suggested that he had a duty during this period to consider the possibility of a civil prosecution in England and that, applying the principles which were explained by Lord Mustill in Reg. v. Secretary of State for the Home Department, Ex parte Doody  1 A.C. 531, 560, it was his duty to consult with the appellant before deciding whether or not to stay the proceedings to enable this to be done.
I would reject this argument on the ground that Parliament has not placed any such duty on the commanding officer. Section 77A permits him to stay the charge, but it does not state that he must consider the alternatives or that before taking his decision he must consult the accused. The matter is left to his discretion, should he think that a stay is appropriate. As for the purpose of this section, it seems that its function is to enable the commanding officer to take the appropriate steps in the light of the facts which he knows about in the place where he is stationed. Discussions with the civil authorities if he is stationed abroad are clearly within his sphere of responsibility. But it seems to me to be an entirely different matter to place on him the responsibility of consulting with the appropriate authority in this country whether there should be a civil prosecution here under the extended jurisdiction provided by section 9 of the Act of 1861. The implications of placing a duty of this kind on every commanding officer wherever he is stationed would be considerable. I do not think that we are in a position to assess these implications. It may be said that the duty would apply only in exceptional cases, but for us to attempt to define these circumstances would be an exercise in judicial law-making which I would regard as illegitimate.
I should add that there are indications in the correspondence which is mentioned in the Court-Martial Appeal Office Summary, some of which has been shown to us, that the commanding officer was in touch with and was being advised by the Director of Army Legal Services. We know that on 14 June 1994 the Director wrote to the Attorney-General seeking his consent to the proceedings under section 132, as it was clear by then that it was unlikely that the prosecution could take place by court-martial before early October after which the Attorney-General's consent would be necessary. Here again we do not have all the facts. I would be very reluctant to criticise the commanding officer on the ground that he failed to fulfil any duties laid upon him by Parliament, or that his actions were so unfair to the appellant as to amount to an abuse of process, without having been provided with a much more complete account of his handling of this case during this period.
b. The higher authority
The case was in the hands of the higher authority from 2 August 1994 to 10 December 1994 for the exercise of the functions described in section 79(1) and (2) of the Army Act 1955. But it is clear that by then discussions were already well under way between the Director of Army Legal Services and the Attorney-General with a view to the prosecution proceeding by way of court-martial in Germany. The matter had also been cleared with the German authorities, who had been told that the appellant was to be tried for murder under English law in Germany. They had agreed not to withdraw their general waiver of jurisdiction which enabled civil crimes committed on their territory by service personnel and civilians accompanying them to be dealt with by the forces and not in the civil courts.
It was suggested that the higher authority was under a duty, similar to that suggested in the case of the commanding officer, to consider the possibility of a civil prosecution in England and to consult the appellant about this. But I think that matters had progressed far beyond this stage by the time the case came into his hands even if, contrary to the view which I have already expressed, any such duty could be spelled out of the provisions of this Act. Here again we know so little about the handling of this case by the higher authority that I think that we are in no position to say that it was his duty to instruct the commanding officer to stay the proceedings so that the case could be prosecuted in England.
c. The Attorney-General
The only function which the Attorney-General had to perform in these matters under the Act was to consider whether or not to consent to the proceedings being taken by way of court-martial outwith the six month period set out in section 132(3) of the Army Act 1955 as substituted by section 6(3) of the Armed Forces Act 1981. It was not suggested that his decision to grant his consent under this provision was not appropriate or that there was any unfairness in the manner in which his consent was obtained. The argument seemed at one stage to be that he should have considered whether or not the appellant ought to be prosecuted in England in the civil courts. But the Act does not identify any stage at which the Attorney-General could be said to be under any such duty, and the way in which he might go about this matter was not explored. He does not, unlike the Lord Advocate in Scotland, have the function of prosecuting crimes in the English criminal courts. The matter would have had to have been taken up at some stage with the Director of Public Prosecutions, but how and when this should have been done was not identified.
The timing of any consideration of the matter by the Director of Public Prosecutions would, in my view, have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe. It cannot be assumed that the Director would have been willing to take proceedings in England without knowing more about the factors which he would have wished to take into account. One obvious factor, I should have thought, was the availability of witnesses. In his letter of 14 June 1994 to the Attorney-General the Director of Army Legal Services had stated that many of the witnesses were German and that they could not be forced to attend a trial in England. Further details were provided at the request of the Attorney-General in a letter by the Director of Army Legal Services dated 25 November 1994. In this letter it is stated that there were 13 German witnesses who would be divided into three categories-those who saw the appellant in the woods near the scene of the murder, those concerned with the finding of the body and police and forensic experts. The defence had not yet indicated what evidence would be agreed. The Director thought that, while some of their evidence might be agreed, it was unlikely that this would include the police and forensic experts. He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to England to give evidence. He added that that one of the forensic scientists who was responsible for examining secretions and bloodstains-a matter which was of crucial importance in this case as there were no eyewitnesses-was being difficult to deal with and would only attend meetings if they were arranged through the German public prosecutor in the nearest large town. He explained that these witnesses were German because the police investigation was commenced by the German civil police as it was initially assumed that a German civilian had perpetrated the crime.
The question of timing is also of importance because of the appellant's right to be tried within a reasonable time. By November 1994 he had already been in custody for well over six months. Although we do not have the details, it would not be unreasonable to think that the Director of Public Prosecutions would have been concerned, if asked, about the prospect of much further delay if he had to enter into discussions with the German authorities about the arrangements which would have to be made to ensure the attendance of the necessary German witness in the English court. This whole matter has been left entirely unexplored, so we simply have no idea as to whether it would have been practicable for the Director to make these arrangements within the time scale which would have been needed to bring the appellant to trial in England within a reasonable time. Unless your Lordships can say that all this would have been practicable, I do not see how it can be asserted with any degree of confidence that the trial by court-martial in Germany was an abuse of process rendering his conviction unsafe.
I have not forgotten that Lord Bingham of Cornhill C.J. said in his judgment that it was clear, with the benefit of hindsight, that the trial could have been conducted in England without undue difficulty. But the Director of Public Prosecutions would have had to have taken his decision well before the trial, in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in England and for the attendance of the witnesses. In the event, as the respondent has recorded in his written case, no agreement was reached despite several written requests and reminders about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during the opening days. This account of what happened strongly suggests that at the stage when the Director of Public Prosecutions would have had to have taken his decision he would have had to assume that the important evidence of the German witnesses would not be agreed before the trial and that the attendance of the German witnesses would be necessary.
d. The refusal of an adjournment
The only ground on which an adjournment was sought was to enable the appellant to seek leave for judicial review of the decision by the Attorney- General. I have already explained that in my opinion the only decision which the Attorney-General was required to take was under section 132(3) of the Act and that there are no grounds for saying that he was not entitled to give his consent to these proceeding taking place out of time. It does appear, as I have also indicated, that he was giving some thought to the question whether the prosecution should take place in England. The details of his consideration of this matter are not before us, but there are good reasons for thinking, in the light of the contents of the letter of 25 November 1994 by the Director of Army Legal Services, that he must have concluded that it would not have been practicable for the case to have been prosecuted within a reasonable time in the English courts and that the Director of Public Prosecutions, if asked, would have been of the same opinion. I do not think that such a decision could have been said to have been irrational in view of the problems which were being mentioned about the attendance of the German witnesses. The prospects of a successful application for judicial review seem to me in these circumstances to have been minimal. For this reason I do not think that the decision by the court-martial to refuse the adjournment provides a basis for holding this conviction to be unsafe.
Much of what I have attempted to cover in this speech has travelled over territory which is uncharted and unexplored. But on the fundamental points I think that the position is clear. The proceedings were conducted within the rules laid down by Parliament. There is no sound basis for thinking that, at the time when a decision about this would have had to have been taken, a prosecution in the English courts within a reasonable time would have been seen to be practicable. The alternatives lay between taking proceedings by way of court-martial in Germany, leaving the matter in the hands of the German public prosecutor or taking no proceedings at all.
In the interests of justice proceedings clearly had to be taken in this case. The only way to secure the ends of justice other than returning the case to the German prosecutor was to proceed by way of a court-martial. There is no ground for saying that the appellant did not receive a fair trial. I would therefore dismiss this appeal.
On 4 February 1994 the body of Vanessa Chappell was discovered in woods near Mönchengladbach in Germany. She had been stabbed to death some two days before. Two days later the appellant was arrested and two days after that he was charged with her murder and taken into military custody. He was seventeen years of age at the time. His father was serving as a corporal in the British army at Rheindahlen in Germany. The appellant was a civilian and not in military service. On 24 March 1994 the father was posted to the United Kingdom and he was discharged on 15 November of that same year. The appellant remained in military custody. Some weeks after his father returned to the United Kingdom the appellant was taken to the Military Corrective Training Centre at Colchester to await trial. In April 1995 he was taken back to Germany to face a trial by General Court-Martial. At the conclusion of the trial on 3 May 1995 he was convicted of murder. He appealed to the Courts-Martial Appeal Court against his conviction but that appeal failed and he has now appealed to your Lordships' House.
It is necessary to refer to certain provisions of the Army Act 1955 to explain how it came about that the appellant was dealt with through military procedures. Part II of that Act contains provisions for the trial and punishment of military offences. By virtue of section 70 anyone subject to military law who commits, whether in the United Kingdom or elsewhere, any act punishable by the law of England or which, if committed in England, would be punishable by that law, is guilty of an offence against that section. By this means the crime of murder becomes an offence against section 70. By virtue of section 209(2) the application of Part II of the Act is extended to the persons described in Schedule 5. The appellant comes within that Schedule as a member of the family and residing with his father. He thus became subject to military proceedings in respect of an alleged offence against section 70, namely the murder of Vanessa Chappell.
Although, as I have mentioned, the appellant's father returned to the United Kingdom in March 1994 the military regime to which his son had become subject continued to be effective. Section 131(1) of the Army Act 1955 provides that where an offence triable by court-martial, and that includes murder, has been committed, or is reasonably suspected of having been committed, by any person while subject to military law he is to be treated as continuing subject to military law for the purposes of investigation, trial and punishment even although he ceases at any time to be subject thereto. Section 209(3)(g) applies this provision to persons in the position of the appellant. Thus while in ordinary circumstances the appellant would have ceased to be subject to military law on 24 March 1994 he continued to be subject to it. It is also to be noticed that had the murder occurred in the United Kingdom or had the father not been serving abroad the matter could not have been tried by a court-martial. More importantly however, even although the alleged murder had been committed abroad the appellant could properly have been tried for it through the ordinary civilian processes in England. That is because by virtue of section 9 of the Offences Against the Person Act 1861 murder is one of the exceptional crimes in respect of which the English courts may have jurisdiction where the crime has been committed abroad.
It is indeed that very possibility which gives rise to the appellant's complaint in the present case. The gravamen of his complaint is that he should have been tried by the ordinary criminal process of a jury trial in England and not by a military court in Germany. In this connection he points out that he was a civilian of eighteen years of age at the time of the trial, not under military discipline, facing a charge of murdering a woman who was evidently a member of an officers' mess before a court consisting of five senior officers and two civilians who could properly return a verdict by a simple majority. He had come under the military regime by no choice of his own but by virtue of the statutory provisions to which I have already referred. Had the case proceeded to England he would have had the advantage of a jury selected at random from his peers and their verdict would have required to be unanimous or at least by a majority of ten to two. His counsel touched on the intimidating nature of the military court for a youth of the appellant's age, although it does appear that some of the more rigorous formalities which may attend the trial of servicemen are relaxed in the case of civilians. In addition the appellant did not have the benefit of the provisions regulating bail nor of the possibility of varying the place of his remand which might have been afforded by the civilian procedures. Instead he was held in the Military Corrective Training Centre at Colchester which was primarily designed for service personnel. The essence of the appellant's complaint is that in the whole circumstances it was an abuse of process for him to have been removed from England, where he could have been tried before a judge and jury, and taken to Germany to stand trial before a court-martial. It was not the trial itself which was attacked. Indeed it is accepted that it was conducted fairly and in accordance with the proper procedures. The attack is directed against the pre-trial procedures and the proposition is advanced that they were unfair and oppressive. It is claimed that in that respect there was an abuse of process and the verdict should be quashed.
Counsel for the appellant identified three stages at each of which he argued that the fairness of the proceedings could and should have been considered. The first of these is contained in section 77A of the Act which provides that: