Service personnel must have the same safeguards as civilians

Royal Courts of Justice, London

The Court Martial Appeal Court (CMAC) has recently ruled on whether there was a power to dismiss charges in the Court Martial prior to arraignment. Unlike in the Crown Court, there is no explicit statutory power to dismiss charges in the Service Justice System. Two non-commissioned officers of the Royal Air Force had applied to dismiss the charges against them, arguing that the Armed Forces (Court Martial) Rules 2009 (“the Rules”) gave a judge advocate the requisite powers. The Crown contended that no such power existed, and the matter came before HHJ Jeff Blackett, the Judge Advocate General, for hearing.

The Defendants argued:

• That s.163 of the Armed Forces Act 2006 (“AFA 2006”) empowered the Secretary of State for Defence to import the relevant provisions of the Crime and Disorder Act 1998 by the making of rules.
• By making Rule 26 of the Rules, the Secretary of State had delegated the power to import the provisions of the Act to a judge advocate.
• In the alternative, a judge advocate could use their powers under Rule 25 to stop proceedings which would in the Crown Court be dismissed under the provisions of the Act.
• There should be a power to dismiss in the Court Martial because service personnel should be treated no differently to a defendant in the Crown Court unless there was a good service reason to do so, and there were no such service reasons.

The Judge Advocate General ruled that neither Rule 25 nor Rule 26 applied and there was no power to import a power to dismiss into the Court Martial. The Defendants were not permitted to apply to have the charges against them dismissed.

The Defendants appealed the ruling to CMAC where the appeal was heard by Simon LJ, William Davis and Jefford JJ. Unlike the Crown Court, defendants in the Court Martial may appeal preliminary rulings. Prior to the hearing the Crown conceded that s.163 AFA 2006 empowered the Secretary of State to import a power to dismiss by the making of rules.

The Defendants renewed their arguments regarding Rule 26 and the need to treat service personnel no differently to a defendant in the Crown Court unless there was a good service reason to do so. The Defendants also expanded on a submission made to the Judge Advocate General that prior to AFA 2006 there had been a power to dismiss charges held by the convening officer, and absent clear parliamentary language it was wrong to assume the protection had been extinguished. AFA 2006 was silent on that point.

Simon LJ gave the judgment allowing the appeal:

‘Differences in the processes between the Court Martial on the one hand and the magistrates’ court and the Crown Court on the other, notably that the former did not involve the summary sending of a case, were such that rule 26(a) did not apply, but, in the absence of any Service reason for depriving a defendant of his right to ask for dismissal of a case, the saving represented by rule 26(b) applied as the interests of justice required the judge advocate to apply a comparable process to that in the Crown Court. That right had existed prior to the coming into force of the Armed Forces Act 2006 and no reason could be discerned for concluding that the right had been removed by that Act.’

Commentary

It is perhaps surprising that the AFA 2006 was in force for a decade before this issue was successfully challenged. What is more surprising is the parliamentary oversight that led to AFA 2006 not explicitly addressing this issue. Before the AFA 2006 the convening officer (a part of the chain of command within a defendant’s particular service) had the power to dismiss charges against a defendant. In exercising this power, the convening officer was not required to apply the test in Galbraith, rather it was a command decision.

Undoubtably the role of the convening officer needed to be abolished as its continued existence fatally compromised prosecutorial independence and the independence of the Service Justice System as a whole. However, AFA 2006 transferred many of the functions of the convening officer to the Director of Service Prosecutions and the Judge Advocate General where they could be exercised independently. Clearly the power to dismiss could have been transferred to the Judge Advocate General. Given the silence of the AFA 2006 the only conclusion to be drawn is that this was an error of drafting within the act, which had far reaching consequences.

The power to dismiss is a fundamental protection for a defendant. It prevents weak cases from entering the system and putting the defendant in peril of wrongful conviction. The power to dismiss also protects the Service Justice System and HM Forces as a whole. The Service Justice System is protected by having weak cases weeded out early before they occupy considerable periods of court time and associated resources. This prevents delay in other cases, delay which can reduce the quality of evidence. Delay in resolving cases has a wider impact on the Armed Forces as delay undermines the morale of individuals and units, distracts service personnel from their duties and impact on operation effectiveness. By allowing Defendants to apply to dismiss charges CMAC has ensured that defendants who have chosen to serve Queen and Country are not disadvantaged. Additionally, the efficiency of the Service Justice System has improved with knock on benefits to all of HM Forces.

The judgment was reported as R v H & J [2019] EWCA Crim 1863

This article was first posted at 5pumpcourt.com