H & J, R.

Factual and Procedural Background

This opinion concerns an application for leave to appeal against a ruling made by Judge Advocate General Blackett at the Court Martial sitting at the Military Court Centre, Catterick, dated 4th June 2019. The two appellants, referred to as the applicants, face trial on charges under section 42 of the Armed Forces Act 2006, specifically conspiracy to fraudulently evade duty on duty-free cigarettes contrary to section 1 of the Criminal Law Act 1977. The applicants deny the charges and contend that the prosecution's case is insufficient for conviction, seeking dismissal prior to arraignment. The procedural context involves consideration of whether the Court Martial has jurisdiction and power to dismiss charges before arraignment, including the applicability of Rule 26 of the Armed Forces (Court Martial) Rules 2009 and the potential importation of dismissal provisions from the Crime and Disorder Act 1998.

Legal Issues Presented

1. Whether a judge advocate in the Court Martial has the power to dismiss charges prior to arraignment.
2. Whether Rule 26 of the Armed Forces (Court Martial) Rules 2009 permits the importation of paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 into Court Martial proceedings.
3. The scope and interpretation of Rule 25 of the 2009 Rules concerning termination of proceedings, including its discretionary power under sub-rule (3).
4. Whether procedural protections analogous to those in the Crown Court should apply in the Service Justice System, particularly regarding applications to dismiss for insufficiency of evidence.

Arguments of the Parties

Applicants' Arguments

• Rule 26 allows a judge advocate to conduct proceedings in a manner closely resembling Crown Court procedures, including applying dismissal provisions akin to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998.
• There is no good service reason to treat defendants in the Service Justice System differently from those in the Criminal Justice System.
• A judge advocate may dismiss charges prior to arraignment under the general discretionary power in Rule 25(3) if the evidence is insufficient.
• Prior to the Armed Forces Act 2006, defendants could apply informally to dismiss charges before arraignment, and there is no justification for removing this right.

Prosecution's Arguments

• The power to dismiss charges before Court Martial does not exist in the Armed Forces Act 2006 or related legislation, and Rule 26 cannot be used to import statutory provisions from other jurisdictions.
• The Court Martial and Crown Court are distinct, with Parliament deliberately differentiating their procedures and powers.
• Rule 25 covers termination of proceedings but does not extend to dismissing charges before trial commencement.
• Allowing the importation of external legislation via Rule 26 would usurp legislative authority and blur clear statutory distinctions.
• The Service Justice System provides adequate protections for weak or vexatious cases through Rule 25 termination or judicial review of prosecution decisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework governing Court Martial proceedings, specifically sections 163(1) to (3) of the Armed Forces Act 2006 and the Court Martial Appeal Court Rules 2009. It noted that Rule 25 addresses termination of proceedings primarily in administrative or procedural contexts related to the composition of the board and allows discretionary termination "in the interests of justice" but does not explicitly empower dismissal of charges prior to trial commencement.

The court rejected the applicants' contention that Rule 26 permits importing the dismissal provisions of paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998, emphasizing that such statutory provisions apply to Crown Court cases sent from magistrates' courts, a process not mirrored in the Court Martial system. The court highlighted that Rule 26's purpose is to guide procedural conduct to resemble comparable Crown Court proceedings only where no explicit provision exists, but it cannot be used to import substantive statutory powers or create new processes.

However, the court recognized that Rule 26 contains a saving provision allowing proceedings to be conducted in the interests of justice if comparable Crown Court procedures are unclear. Applying this, the court found no service reason to deny defendants the right to apply to dismiss on grounds of insufficient evidence, noting that historically such rights existed in the Service Justice System. The court held that a judge advocate must consider how comparable Crown Court proceedings would operate and ensure an analogous procedural mechanism exists in the Court Martial to allow for dismissal applications.

The court clarified that this procedural alignment does not extend to importing substantive law or legislation unrelated to procedural fairness. It also held that the Judge Advocate General erred in concluding that Rule 25(3) provides a standalone power to dismiss at arraignment, as this rule is to be read ejusdem generis within its context of administrative termination of proceedings.

Holding and Implications

The court GRANTED LEAVE TO APPEAL and REVERSED the ruling of the Judge Advocate General that denied the applicants' ability to apply to dismiss charges prior to arraignment.

The case was directed to be listed before a judge advocate to hear the application to dismiss.

The decision clarifies that while the Court Martial does not have express statutory power to dismiss charges before trial as in the Crown Court, procedural fairness requires that comparable mechanisms exist to allow dismissal applications on grounds such as insufficient evidence. This does not create new substantive powers but ensures procedural parity where appropriate. No new precedent regarding substantive law was established; rather, the ruling focuses on procedural rights within the Service Justice System.