The Service Prosecuting Authority directed that the defendant, who was serving in the armed forces, be tried by a court martial on 11 charges of controlling or coercive behaviour and sexual and physical violence under the Armed Forces Act 2006 against his former partner also serving in the armed forces. He was then charged by his commanding officer and discharged from the service. He submitted that since, by the time the proceedings commenced, he was an ex-serviceman facing domestic charges, he should be tried by a court-martial board comprised of civilian members rather than military officers. He applied to the judge advocate for an order pursuant to rule 49(2)(c) of the Armed Forces (Court Martial) Rules 2009 directing the court administration officer (“CAO”) that the lay members should all be civilians. The judge advocate issued a preliminary ruling that he had no power to direct the CAO to specify a civilian only board, it being a matter for the CAO and refused the application. The defendant applied for leave to appeal against the judge’s ruling. On the appeal the following issues of law arose: (i) whether judge advocates had the power to rule on the constitution of the board in general; (ii) the proper interpretation of “commencement of proceedings” under rule 33(5) of the 2009 Rules; and (iii) whether the judge advocate had the power to order a purely civilian board for the court martial of the defendant.
On the appeal—
Held, appeal dismissed. On a true construction of rule 33(5) of the 2009 Rules, the proceedings commenced when a defendant’s case was allocated for trial in the court martial even if there had not yet been a hearing, he had not yet appeared before the court martial or he had not yet been arraigned. The contrary interpretation gave rise to a substantial risk of arbitrary distinctions being drawn according to the date when a hearing was first convened. In the present case, the proceedings against the defendant commenced when he was charged and made subject to service law. It followed that rule 33 of the Armed Forces (Court Martial) Rules 2009 had no application. Rather section 155(3) of the Armed Forces Act 2006, which required all the lay members at his court martial to be officers, applied. Section 155 of the 2006 Act and Part 4 of the 2009 Rules drew a distinction between a decision as to the composition of the board and the identification of the individuals making up that composition, the former being a decision for the judge advocate and the latter, which involved the random selection of persons in the relevant panel of prospective lay members, for the court administration officer (“CAO”). In a case where the legislation required there to be lay members but permitted them to be officers, civilians or a mixture of the two, a judge advocate had to give a direction, binding on the CAO who had to specify members from the category or categories directed, as to the category or categories from which the individual members were to be selected. The judge advocate’s direction might be appealed pursuant to rule 50 of the 2009 Rules if it was made in preliminary proceedings, but the specifying of the individual lay members was exclusively for the CAO. Accordingly, since rule 33(5)(a) did not apply because the defendant was subject to service law when the proceedings were commenced, the lay members all had to be officers to be specified by the CAO (paras 38–43).
Justin Hugheston-Roberts and Joey Kwong (instructed by Bark & Co Solicitors) for the defendant.
Commodore James Farrant (RN) (instructed by Service Prosecuting Authority) for the Director of Service Prosecutions.
Matthew Bolt (instructed by Government Legal Department) for the court administration officer, the intervener.