R v Martin (Alan)
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD SLYNN OF HADLEY,LORD LLOYD OF BERWICK,LORD HOPE OF CRAIGHEAD,Our statutory jurisdiction,The court-martial system: civilians and juveniles,Section 9 of the Offences against the Person Act 1861,The decisions in this case - whether there was an abuse of process,a. The commanding officer,b. The higher authority,c. The Attorney-General,d. The refusal of an adjournment,Conclusion,LORD CLYDE |
| Judgment Date | 16 December 1997 |
| Judgment citation (vLex) | [1997] UKHL J1216-2 |
| Court | House of Lords |
[1997] UKHL J1216-2
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Lloyd of Berwick
Lord Hope of Craighead
Lord Clyde
(On Appeal from Her Majesty's Courts-Martial Appeal Court)
My Lords,
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.
My Lords,
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.
My Lords,
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:
"Whether proceedings by way of a court-martial which are regularly constituted and conducted according to provisions of the Army Act 1955 may nevertheless be stigmatised as an abuse of process."
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) [1996] 1 Cr.App.R. 94. In ruling that there had been no abuse of process, the Judge Advocate said:
"I am satisfied that the prosecution have neither manipulated nor misused the process of the Court so as to deprive the defendant of a protection provided by the law or take unfair advantage of a technicality. I am also satisfied that the defendant has not been and will not be prejudiced in the preparation or conduct of his...
To continue reading
Request your trial
-
NN v Minister for Justice and Equality
...degree of likelihood that the applicant would be persecuted for a convention reason if returned to his own country (see [1998] 1 All ER 193 at 197-198, 202, [1988] AC 958 at 994, 1000 per Lord Keith of Kinkel, per Lord Goff of Chieveley). Support was afforded by an earlier of the House of......
-
Queen v William James Fulton
...are exceptional reasons that it should not.” [51] This approach is entirely in line with what was stated by Lord Clyde in R v Martin [1998] AC 917 at 946: “No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a tr......
-
R v Mullen (Nicholas Robert Neil)
...is made to the conduct of the trial or to the correctness of the jury's verdict. Mr MacKay referred to R v Chalkley [1998] QB 848 and R v Martin [1998] AC 917, which both contain dicta which appear to be contrary to his submission and to which we will return 28On behalf of the Crown, Mr S......
- Bertran v Vanstone
-
Recent case: Criminal procedure
...cases, butthere must besomething so gravely wrong as to make it unconscionable that a trial should go forward … ” (R v Martin [1998] 1 All ER 193, at 216 per Lord Clyde.)’• ‘“Something so unfair and wrong that the court should not allow aprosecutor to proceed with what is ......