Judgment - Regina v. Martin (On Appeal from Her Majesty's Courts-Martial Appeal Court)  continued

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          But the question for us is not whether trial by jury in an English court would have been more appropriate. The question is whether the proceedings by way of general court-martial in this case were an abuse of process. I believe that when this question is examined with a proper regard to the statutory context and after a careful examination of the facts which are known to us-recognising that on some important matters we do not have the facts -there can be only one answer to it. This is that it must be answered in the negative.

Our statutory jurisdiction

          This is an appeal from the Courts-Martial Appeal Court. Section 41(3) of the Courts-Martial (Appeals) Act 1968 provides that, for the purpose of disposing of an appeal under Part III of the Act which deals with appeals from the Courts-Martial Appeal Court, the House of Lords may exercise any of the powers of the Appeal Court or may remit the case to that court. Section 12(1) of that Act, as substituted by section 29(1) of and paragraph 5 of Schedule 2 to the Criminal Appeal Act 1995, provides that the Appeal Court shall allow an appeal against conviction by court-martial if they think that the conviction "is unsafe," and that they shall dismiss such an appeal in any other case. Section 19 gives power to the Appeal Court to authorise a retrial in certain circumstances, but this must be a retrial by court-martial, not a retrial in a civil court.

          The power to quash a conviction under section 12(1) is the same as that which has been given to the Court of Appeal (Criminal Division) by section 2(1) of the Criminal Appeal Act 1968 as substituted by section 2(1) of the Criminal Appeal Act 1995. The effect of the amendments which were made by the Act of 1995 was to replace the previous grounds for allowing a conviction by the introduction of a single broad ground of appeal. The previous grounds included a proviso which enabled the court, notwithstanding that they were of the opinion that the point raised in the appeal might be decided in favour of the appellant, to dismiss the appeal if they considered that no miscarriage of justice had actually occurred. The new ground enables the Court of Appeal to consider all the circumstances of the case, including questions of law as well as questions of evidence and procedure.

          In the ordinary case the Appeal Court exercises its jurisdiction by examining the effect of the point raised in the appeal on the course of the trial. Defects or insufficiency in the evidence and errors of law and procedure at the trial must be assessed in the context of the whole trial before the court can be satisfied that the conviction is unsafe. But there is a category of case which enables the Appeal Court to examine the procedure before the trial which brought the appellant before the court. This is the category known as abuse of process, and it is the category which is invoked by the appellant in this case. In Hui Chi-Ming v. The Queen [1992] 1 A.C. 34, 57B Lord Lowry in delivering the judgment of the Board said that an abuse of process is something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding. Thus it is no answer to a claim that there was an abuse of process to show that the proceedings at the trial itself were entirely fair.

          The concept received its clearest and most far-reaching exposition in Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 A.C. 42, 61H-62A and 62G where Lord Griffiths said:

     "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 though 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. . . .

            "In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party."

          That case was decided at the stage of the committal proceedings on an application for judicial review. But I do not think that it can be doubted that the Appeal Court-in this particular case, the Courts-Martial Appeal Court-have power to declare a conviction to be unsafe and to quash the conviction if they find that the course of proceedings leading to what would otherwise have been a fair trial has been such as to threaten either basic human rights or the rule of law. The question in this case is whether it was conduct of that kind which led to the appellant being tried by general court-martial in Germany rather than by means of a jury trial in the Crown Court.

          In Bennett's case the appellant claimed that, having taken a decision not to make use of the extradition process to secure his return to England from South Africa, the English police colluded with the South African police to have him arrested in South Africa and forcibly removed to this country against his will. Lord Griffiths was careful to say at p. 52G that it was not for this House to pass judgment at that stage in the proceedings as to where the truth lay in this matter. For the purpose of testing his submission that the court had power to inquire into the alleged abuse, it had to be assumed that the allegation was well-founded. Following the decision of this House on 24 June 1993 that the High Court had power to inquire into the circumstances, the case was remitted to the Divisional Court for further consideration. On 10 March 1994 the Divisional Court, having heard evidence, quashed the committal for Bennett's trial in the Crown Court: see Reg. v. Horseferry Road Magistrates' Court, Ex parte Bennett (No. 3) [1995] 1 Cr.App.R. 147.

          Bennett's alleged criminal activities then came before the Scottish Courts. He was alleged to have committed fraud there, and a warrant was granted by the sheriff for his arrest so that he could be brought to Scotland. On 7 October 1994 he presented a petition to the High Court of Justiciary in which he sought an order suspending the warrant on the same grounds as those which had been upheld in the English Courts, namely that his presence in the United Kingdom was illegal because of the circumstance which had led to his being brought to this country. The High Court of Justiciary refused his application: see Bennett v. H.M. Advocate 1995 S.L.T. 510. It did so because it was provided with a more complete account of the circumstances which had led to Bennett's presence in the United Kingdom than had been available to the English Courts. On that account it is perhaps questionable whether Bennett should have been able to escape prosecution in the English courts.

          The facts are set out in the opinion of the court in that case at pp. 513D-514G, and I do not need to repeat them here.

          I wish only to emphasise the risk of damage to the course of justice of deciding that there was an abuse of process without there being adequate and accurate information to support it. In a criminal appeal the only power of the Appeal Court, unless it is to order a new trial, is to quash the conviction. The finality of that decision in the context of a decision by the Courts-Martial Appeal Court is indicated by section 133 of the Army Act 1955 as substituted by section 25(1) of the Armed Forces Act 1966. This section provides that, where a person subject to military law has been tried for an offence by court-martial, a civil court shall be debarred from trying him subsequently for an offence substantially the same as that offence. So it is clear that the effect of allowing the appeal in this case would be not only to quash the conviction by the court-martial but also to bring to an end all proceedings against this appellant for this offence in any court.

          The effect of such a decision on the course of justice in this case would be profound. The problem is one which is all too familiar to any judge who has sat in a criminal appeal court. On the one hand there is an allegation that there was a miscarriage of justice. On the other there is the public interest in the conviction and punishment of the criminal. The crime in this case was a particularly savage one, and it had disturbing sexual overtones. Questions of public safety are involved here as well as questions of punishment. No criticism has been made of the proceedings at the trial on the ground that they were unfair. The evidence against the appellant was substantial, and it is not now suggested that in this respect the conviction was unsafe. It would clearly be contrary to the public interest in these circumstances for the appellant to be released unless there was a sound basis for declaring that his conviction is unsafe. So it is important to examine with the greatest care the allegation that there was such unfairness in the procedure before trial as to amount to an abuse of process.

The court-martial system: civilians and juveniles

          Part II of the Army Act 1955 deals with discipline and the trial and punishment of military offences. Section 70 of the Act, re-enacting previous legislation, provides that any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section. A footnote to the section in Current Law Statutes Annotated 1955 states that the question whether an officer or a soldier who is alleged to have committed a civil offence should be tried by a civil court or by a military tribunal under that Act was to be decided in accordance with Army Council Instruction 481 of 30 July 1952, which is printed in the First Report of the Select Committee on the Army and Air Force Acts (House of Commons Papers 1952-53 No. 289 at p. 412). This was a House of Commons Select Committee by which recommendations were made for the revision of the various service enactments which resulted in the Army Act 1955, the Air Force Act 1955 and the Revision of the Army and Air Force Acts (Transitional Provisions) Act 1955. It was stated in the Army Council Instruction, which dealt with the trial of officers and soldiers by civil courts in Great Britain, that the chief officer of police, normally after consultation with the commanding officer of the accused, was alone responsible for the decision whether an officer or soldier who was alleged to have committed a civil offence of which the police had cognisance was to be tried by a civil court or handed over to the military authorities to be dealt with under military law. In para 52 of its first report the Select Committee stated that the practice as indicated in the Army Council Instruction was satisfactory and should be continued.

          One of the alterations to the previous legislation which was enacted in the Army Act 1955 and the Air Force Act 1955 on the recommendation of the Select Committee in its Second Report was to extend military and air force law to all civilians accompanying the forces overseas. Previously civilians and followers were subject to military law only when the forces they were accompanying overseas were on active service. That alteration in the law in regard to the army was provided for by section 209 of the Army Act 1955. Subsection (2) of that section applies to the present case, because it deals with civilians outside the United Kingdom where the forces are not on active service. A footnote to this section in Current Law Statutes Annotated 1955 states that the object of this section was to give the military authorities the requisite powers to exercise such jurisdiction over civilians and followers accompanying United Kingdom forces overseas as might be secured by treaty or other arrangement with the authorities of the overseas territories where the troops were serving: see paragraph 70 of the Second Report of the Select Committee (House of Commons Papers 1953-54, No. 223, p. xxvii. It is not difficult to understand the utility of this provision, in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces while serving overseas. Had the law not been changed in this respect, civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and, if sentenced to imprisonment, to serve the sentence in a local prison. In my view we cannot approach this case with the idea that it is an abuse of process for a civilian who is subject to military law to be prosecuted by way of court-martial for a civil offence committed abroad which, if committed in the United Kingdom, would be tried by a jury in the Crown Court. Parliament has provided expressly to the contrary.

          What then of juveniles, and what especially of those juveniles who are to be prosecuted on a charge of murder committed abroad? The first point is that no provision was included in the 1955 Act to exclude juveniles from the application of either section 70 or section 209 of the Act. The list of civilians in Schedule 5 to which Part II of the Act was to apply includes no such exception. If it had been thought that an exception was needed in their case in the interests of fairness, one would have expected this to be provided for expressly in the Act. But an express exception in their case is absent from the list set out in the Schedule, and none of the modifications in section 209 deals with their case. One can only conclude that the intention of Parliament was that they should be treated under section 209 in the same way as civilians of full age.

          The second point is that, notwithstanding the provisions of section 9 of the Offences against the Person Act 1861, murder and manslaughter are not excluded from the application of section 70 of the Act to civilians accompanying the forces serving abroad. Subsection (2) of this section provides that the expression "civil offence" means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law. Subsection (3) as originally enacted provided for the imposition of the death penalty in the case of a person convicted of murder. The only exception is that set out in subsection (4), which provides that a person shall not be charged with an offence against that section committed in the United Kingdom if the corresponding civil offence is treason, murder, manslaughter, treason-felony or rape. So persons who are accused of these offences committed in the United Kingdom must be proceeded with by means of a jury trial in the civil courts. But it is impossible to say that it would be an abuse of process for a civilian to be prosecuted for these offences by means of a court-martial if they were committed abroad. Parliament has provided by necessary implication to the contrary.

          The question whether Parliament intended that juveniles should be capable of being prosecuted for murder committed abroad by means of a court martial was put beyond all doubt by section 10 of the Armed Forces Act 1976. This section inserted a new section 71A in both the Army Act 1955 and the Air Force Act 1955 dealing particularly with the powers of a court- martial under those Acts in relation to juvenile offenders. Subsection (3) of that section deals with the case of a person convicted of murder who was under the age of 18 years when the offence was committed. It applies directly to the circumstances of the present case. It provides that such a person shall not be sentenced to life imprisonment or to the imposition of the death penalty but that he shall be sentenced to be detained during Her Majesty's pleasure. In my opinion this subsection, when taken in the context of the other provisions to which I have referred, amounts to an acknowledgement by Parliament that it was open to the military authorities to proceed by way of court-martial on a charge of murder against a civilian who was under the age of 18 when the crime was committed. Here again it seems to me to be impossible to say that it would be an abuse of the process of court-martial for a juvenile to be prosecuted in this way. Such a proceeding is entirely in accordance with the procedures laid down by Parliament.

          One further amendment to the Army Act 1955 is relevant at this stage. It is section 77A, which was inserted by section 3 of the Armed Forces Act 1981. It is in these terms:

     "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."

An amendment in the same terms was made to the Air Force Act 1955 and to the Naval Discipline Act 1957. A footnote to this section in Current Law Statutes Annotated 1981 explains the background:

     "It is not uncommon for a member of one Service to be attached to another in which case he will come under the command of a superior officer not of his own Service (see 1955 Acts, s.178). Under the 1955 Acts it is the duty of a commanding officer to investigate a charge laid against a subordinate. He must dismiss it or refer it for trial, or in limited circumstances, deal with it summarily. Section 3 now provides that he may also stay proceedings for the charge to be dealt with by the Service Act of the accused rather than by the Act originally invoked."

This provision must be read together with chapter 7 of the Queen's Regulations for the Army, which deals with the various questions which arise in regard to the jurisdiction to prosecute for offences committed both in the United Kingdom and abroad. In paragraph J7.002 attention is drawn to the fact that jurisdiction will lie both with the service authorities and with the civil authorities where an offence committed abroad is an offence against both service law and the law of the country or colony concerned. The point is made that in such circumstances it will be the local law or the terms of any treaty or agreement with the country or colony which will decide in a particular case which authorities shall exercise jurisdiction. Section 77A thus enables the commanding officer to stay proceedings under one service Act to enable proceedings to be taken under another service Act when this is appropriate. It also enables a stay to be made to enable proceedings to be taken by the civil authorities if they decide to exercise jurisdiction in the case in the local court.

          It is to be noted that no mention is made either in section 77A or in any previous legislation in this context or in chapter 7 of the Queen's Regulations of the possibility that a stay should be ordered to enable a prosecution for an offence of murder or manslaughter committed abroad to be prosecuted by means of a civil trial in the United Kingdom. This omission lies at the heart of the issue raised by the present case. Moreover there is no indication that any thought was given to this possibility by anyone in authority in Germany at any stage in the proceedings which led to the placing of the appellant on court-martial there for this offence. The only alternatives which appear to have been considered were a court-martial on the one hand and a trial by the civil authorities in Germany on the other. This may seem surprising, but I think that the omission is explicable by the fact that there is no indication in any of the relevant legislation or regulations that this was a possibility which required to be considered by them where a court-martial was being contemplated and the civil authorities had waived their right to exercise jurisdiction in the case in the local court.

Section 9 of the Offences against the Person Act 1861

          The basic rule of the common law is that the jurisdiction of the criminal courts of the United Kingdom is confined to crimes committed within the territory of each court. The territorial principle requires attention to be paid to the place where the act was committed: Huntington v. Attrill [1893] A.C. 150, 156, per Lord Watson. Section 9 of the 1861 Act is an exception to this rule. A similar provision is made for Scotland by section 11(1) of the Criminal Procedure (Scotland) Act 1995, which re-enacted previous legislation. No indication is given in either of these sections of the criteria which are to be applied in reaching a decision as to whether a murder committed abroad is to be prosecuted in this way, nor is any provision made for the procedure which has to be gone through.

          Fundamental to the appellant's argument in the present case is the proposition that the purpose of these provisions, and in particular of that in the 1861 Act, was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt decided by means of a jury trial. It is the assumption that this is the purpose of this legislation which has given rise to the argument that for the appellant to be deprived of that right in this case was an abuse of process. In my opinion however is open to question whether the purpose of this legislation was to make available to such persons the right of jury trial.

          It seems to me that another, and more likely, explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a British citizen. It has to be recognised that cases may arise from time to time where the civil authorities abroad are unable or unwilling to prosecute these crimes in their own courts. The authorities in this country have a clear interest in dealing with such offences, especially when both the victim and the alleged perpetrator are British citizens. So the provision to enable this to be done is a valuable addition to our criminal procedure. Another situation where the section has evident utility is where the offender has returned to this country without being apprehended abroad for the offence, and the question is whether he should be sent back to the country where the offence was committed or be prosecuted instead in this country for his offence.

          This approach to the purpose of section 9 is consistent with the way in which murders committed abroad by civilians and especially by juveniles have been dealt with in the Army Act 1955 and the other service Acts. If section 9 was intended to confer a right to a jury trial in England on those who was accused of murders committed abroad, it is remarkable that this was not noticed by Parliament and an exception made for it when the service Acts were being amended to enable civilians to be tried by court martial for civil offences committed abroad. The provisions of section 70(4) seem to provide a clear indication that the only concern of Parliament was to ensure that those civil offences should be tried in the civil courts where they were committed in the United Kingdom. This would have been the obvious place to ensure that the right to a jury trial was preserved in cases of murder and manslaughter committed abroad also, but no such provision has been made. The more modern examples of an extension of the extraterritorial jurisdiction to provides for crimes committed abroad which are listed in Archbold's Criminal Pleading Evidence & Practice paragraphs 2-33 to 2-88 are all more readily explicable on the ground that their purpose was to ensure that such offences did not go unpunished rather than a concern to preserve the right to jury trial.

          No cases were shown to us where decisions as to whether or not to prosecute under section 9 have been brought under review by the English courts. Nor were any examples cited to us of prosecutions in England for murders or manslaughter committed abroad. I am however aware of one such case which was prosecuted a few years ago in Scotland. The offence was alleged to have been committed in a Spanish holiday resort. The accused, whose home was in Scotland, was said to have pushed his wife to her death over a balcony of their hotel. The Spanish authorities, having inquired into the incident, took the view that it was probably an accident and the accused was allowed to return home. The Lord Advocate conducted further inquiries because the family were not satisfied that it was an accident. In the light of his inquiries he decided to prosecute in Scotland under the extended jurisdiction which was available to him under the statute. This was an example of the utility of the provision in a case where the crime was not to be proceeded with abroad and it might otherwise have gone unpunished. In the event the accused was acquitted, so the question as to the fairness of the proceedings did not require to be considered by the Appeal Court.