House of Lords
| Date | 01 June 1998 |
| DOI | 10.1177/002201839806200304 |
| Published date | 01 June 1998 |
| Author | JA Coutts |
| Subject Matter | House of Lords |
HOUSE OF LORDS
COURT-MARTIAL OF SOLDIER'S SON NOT AN ABUSE OF PROCESS
RvMartin (Alan)
Section 209 of and Sched 2, para 5 of the
Army
Act 1955 subjects to
military law any member of the family living with a soldier who is serving
as such in Germany. In R v Martin (Alan)
[1998]
2 WLR 1, the 17-year-
old son of a corporal serving in
Germany
was charged with the civil
offence of murder of a young woman in Germany, before a court-martial
in Germany, under s 70
of
the Act, although he was a civilian who had,
on his father's discharge from the army, returned to England with his
father by the time he had been charged with the murder. The
German
government had formally waived its right to exercise jurisdiction in the
German courts. The procedures laid down in the Army Act had been
followed, in that the officer appointed to be the commanding officer of
the defendant for this purpose had, under s 79(1) of the Act, referred the
matter to a higher authority with a view to proceedings being brought
before a court-martial. By virtue of s 132(3A) of the Act, as substituted,
the consent of the Attorney General was, in the circumstances of this case,
necessary before proceeding in the proposed manner, but that consent was
given after consideration of the fact that, if the trial were before a judge
and jury in England, there would be difficulty in adducing the necessary
evidence before the English court, as the potential witnesses from
Germany
would not be subject to a subpoena which could be enforced. When the
case came before the court-martial in Germany, the defendant submitted
that the court had no jurisdiction, as it was an abuse of process to try a
civilian, who was resident in England, by court-martial abroad, thus
depriving him of his right to jury trial in England. This submission was
rejected and he was convicted and his conviction was upheld by the
Courts-Martial Appeal Court. That court, however, although refusing to
grant the defendant leave to appeal from its decision, certified as a point
of law
of
general public importance the question whether proceedings by
way of court-martial regularly constituted, which were carried out in
accordance with the provisions
of
the
Army
Act 1955, could nevertheless
be stigmatised as an abuse
of
process.
In the House
of
Lords, the only manner in which the procedures
followed were criticised was confined to the way in which some
of
the
steps taken prior to the hearing had been carried out. Lord Slynn thought
that it had not been clearly shown that the commanding officer, before
referring the case to higher authority with a view to proceeding by court-
martial had ever really considered whether such proceedings were required
(or were preferable) in the interests
of
justice. He had not, that is,
considered the possibility that trial by jury in England could as well have
attained the interest of justice.
Nor
was it shown whether the defendant
had been given any opportunity to make representations to the
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