"Where, in the course of investigating a charge, it appears to the accused's commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under this Act he may stay further proceedings on the charge."

          Counsel for the respondent pointed to the words "where it appears" and submitted that there was no obligation imposed on the commanding officer to ask and answer the question of a stay. I am not persuaded that that is correct. The words "where it appears" seem to me to be doing no more than making the decision whether or not to stay the proceedings a matter for the subjective decision of the commanding officer. They should not be construed as allowing the matter to be left to the chance that something might emerge in the course of the investigation which triggers the thought in the commanding officer's mind. In my view the section, by providing in effect that where he considers that there ought to be a stay he may grant one, imposes on him an obligation to apply his mind to the question in the course of his investigation. Parliament has made this express provision for the possibility of a stay in the interests of the better administration of justice and has given the commanding officer a discretion to be exercised in that regard. The existence of that discretion is echoed in Rule 7(1) of the Rules of Procedure (Army) 1972 and, as a footnote to the relevant proviso (bb) points out, the alternative proceedings which the provision contemplates include trial before a civil court. In fulfilling the obligation to consider a stay that was clearly one possibility which fell to be taken into account in the present case.

          It is sufficient for the purposes of the appellant's case to identify an obligation to consider a stay under section 77A. If it was necessary, I consider that a corresponding conclusion could properly be reached in relation to section 80, which was the second of the sections to which counsel referred. That section relates to the stage where a charge has been referred to higher authority with a view to its being tried by court-martial or for determination how it is to be proceeded with. The section states that that authority "may refer the charge back to the commanding officer of the accused with a direction to dismiss the charge or a direction to stay all further proceedings thereon." In exercising that discretion it seems to me that there is an obligation on the higher authority to consider the possibility of a stay. It is however unnecessary to explore that matter further. The third section on which counsel founded was section 132(3A). Section 132(3) imposes certain time limits on the commencement of proceedings for offences under military law. Section 132(3A) excepts from those time limits among other things offences against section 70 "where the civil offence is alleged to have been committed outside the United Kingdom and the Attorney-General consents to the proceedings." In the present case the Attorney-General was asked to consent and did consent to the proceedings. But I am not prepared to spell out of that section an obligation on him to consider the question of the choice of forum for the disposal of the case against the appellant. It may well be that the proposed venue for the trial could feature incidentally in his consideration of the delay and the overcoming of the prescribed time limit but I do not find here an obligation on him which could support the appellant's argument. However, it is sufficient for his purposes to found on section 77A.

          The question then arises whether the commanding officer ever did consider the possibility of a stay under section 77A and a civil trial in England. It certainly appears from certain letters passing between the office of the Ministry of Defence and the Attorney-General's chambers which were produced that consideration was given to the possibility of the case falling under the jurisdiction of the German courts; but the German authorities did not seek to achieve that course. It does not now seem to be possible to discover what attention was paid to section 77A and the option of a trial in England. If there was a failure to consider that question there would in my view have been a failure to observe the statutory procedure.

          Two other questions arise. The first is whether if the question of stay for a trial in England was considered a decision to prefer a court-martial in Germany was irrational. Looking to the factors which I have already noted in comparing the two processes, and bearing in mind particularly the serious nature of the charge which the appellant was facing, there seem to me to be powerful arguments in favour of such a conclusion. The strongest argument for the contrary view to my mind is the consideration that there were several potential witnesses in Germany, and more particularly certain expert witnesses, whose evidence was of very considerable importance for the prosecution. It may of course be the case that all the witnesses would have been prepared to attend a trial in England, or that alternative means could have been arranged for having their evidence made available without their attendance. But it is at that point that I find it impossible to form a sufficiently confident view on the matter of irrationality. Some of the witnesses may have in fact been unwilling and the recognition of the difficulties then involved might well support the reasonableness of the decision. There is not sufficient detail available to lead me to a condemnation of such decision as there may have been to prefer a trial in Germany.

          The other question is whether account should have been taken of any views which the appellant himself might have on the choice of venue. The procedure certainly makes no provision for him to be consulted, but that is not necessarily determinative. In the circumstances of the present case fairness might be thought to require that his views should be sought on a matter which so closely and significantly concerned him. I have however reached the conclusion that there is no sound basis for predicting an expectation on the part of the accused that he would contribute his views on the choice of venue for his trial. Matters relating to the preparation of criminal proceedings are matters for the prosecuting authority to determine. While consultation with the defence may help in resolving practical problems in the preparation or presentation of a case I see no room for an obligation to seek the views of the appellant in the present case on the issue of the venue for his trial. That kind of decision must be left to the prosecuting authority.

          The appellant's case is that there has been an abuse of process. What may be embraced by the expression can only be defined in general terms. The multiplicity of particular circumstances which may require to be included makes it difficult to formulate any exact or comprehensive catalogue. For the purposes of the present case I would adopt the general description formulated by Lord Lowry in Hui Chi-Ming v. The Queen [1992] 1 A.C. 34, 57: "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding." An abuse may occur through the actings of the prosecution, as by misusing or manipulating the process of the court. But it may also occur independently of any acts or omissions of the prosecution in the conduct of the trial itself. Indeed the very holding of the trial may constitute an abuse. The taking of a prosecution in breach of a promise not to prosecute was held in Reg. v. Croydon Justices, Ex parte Dean [1993] Q.B. 769 to constitute an abuse of process. Another example is Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42. In that case there was no reason to suppose that the eventual conduct of the trial would be other than fair in itself but the breach of extradition procedures whereby the accused had come to be within the jurisdiction of the court was such as to amount to a gross abuse of power. In that case Lord Griffiths observed:

 "In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law."

          My Lords, I find in those words useful guidance towards defining the standard which requires to be met under the present state of the law in determining whether circumstances occurring outwith the conduct of a criminal trial may qualify as an abuse of process so as to vitiate all that may have followed. No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness. The certified question in the present appeal is "whether proceedings by way of a court-martial regularly constituted and conducted according to provisions of the Army Act 1955 may nevertheless be stigmatised as an abuse of process." The question is to be understood as referring only to proceedings taken against civilians. In the generality of the matter, accepting that qualification, I would return an affirmative answer. But the possibility which is raised in the question and in the answer is one which requires for its realisation the establishment of the kind of fundamental injustice which I have just sought to describe.

          The abuse which was alleged in Bennett was raised by way of judicial review. In the present case no clear opportunity for that remedy occurred before the start of the trial. The complaint was raised by the appellant's counsel at the outset of the proceedings. The Judge Advocate ruled against him. He then sought a short adjournment to enable him to raise the point by way of review before the court in England. But the adjournment was refused and the trial proceeded to its conclusion. The appellant then pursued his arguments on appeal. In many cases points of possible unfairness which occur during the period prior to trial may well be best resolved at the trial, particularly where they may affect the admissibility of evidence. But where the whole course of proceeding is challenged it seems unfortunate that it was not or could not have been raised at an earlier stage so as to avoid the debate on the holding of the court-martial to be conducted when the tribunal had already assembled and the proceedings were about to commence. On the other hand it has to be recognised that the circumstances of the present case were somewhat special and unusual.

          But the question which remains is whether in the circumstances of the present case there was an abuse of process. The complaint resolves itself into a preference for trial by judge and jury over trial by court-martial. No issue arises as to any oppression, irregularity or impropriety so far as the latter alternative was concerned. No attack is made on the composition of the tribunal as having been other than in accordance with the law. No attack is made on the conduct of the trial as having been otherwise than fair.

          My Lords, the process of the trial of criminal cases by judge and jury is one of the most valuable features of the legal systems of Britain. The instinctive sense of justice of ordinary people, and their ability to reflect and express the current values of the community, provide a healthy contribution to the assessment of guilt and innocence. It is in any event proper that the public should actively participate in what is essentially a matter of public interest and concern. But valuable as the institution may be I am not prepared to assert that the provision of the alternative which was followed in the present case amounted to so grave an invasion of human rights or was so grossly unfair or oppressive as to threaten the stability of the verdict of the court-martial. The decision of the European Court of Human Rights in Findlay v. United Kingdom (1997) 24 E.H.R.R. 221 related to the particular circumstances which were encountered in the court-martial and do not in my view assist the appellant here. In the terminology of section 12(1) of the Courts-Martial (Appeals) Act amended by section 29 and Schedule 2 of the Criminal Appeal Act 1995, the ground on which the Appeal Court is to allow an appeal is that they think that the conviction is unsafe. I am not persuaded that the fact that the appellant did not enjoy the traditional system of trial by judge and jury in England was so serious a factor in the whole process as to render his eventual conviction unsafe. Indeed, from a consideration of the brief record of the evidence which is in the papers before us and taking full account of the fact that the whole details have not been canvassed before us it is not immediately evident to me that any miscarriage of justice has occurred here.

          I would dismiss the appeal.