No: 2013/2874/C2 
Neutral Citation Number: [2013] EWCA Crim 2579
IN THE COURTS MARTIAL APPEAL COURT
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 12 December 2013
 
B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE ROYCE 
 
MRS JUSTICE ANDREWS DBE 
- - - - - - - - - - - - - - - - - - - - - - 

R E G I N A 

v 

S
 
- - - - - - - - - - - - - - - - - - - - - - 

Computer Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - - - 
Brigadier Lythgoe and Lt Cpl P Barker appeared on behalf of the Applicant Crown
Mr C Surtees‑Jones appeared on behalf of the Respondent Defendant
- - - - - - - - - - - - - - - - - - - - - - 
J U D G M E N T
LORD JUSTICE TREACY:  
1.	This is an application by the Service Prosecution Authority ("SPA") for leave to appeal against a ruling at a preliminary hearing under Part 6 Chapter 1 of the Court Martial Appeals Order, Statutory Instrument 2009 No 2657.  The SPA is prosecuting the respondent for five charges of committing a civil offence contrary to section 42 of the Armed Forces Act 2006.  The first charge is one of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act.  The remaining four charges (2 to 5) comprise offences of battery.  These last four charges relate to the respondent's female partner.  
2.	On 22nd May 2013, at the Sennelager Court Martial Centre in Germany at a preliminary hearing, Judge Large (Assistant Judge Advocate General) upheld an application to stay the proceedings in relation to charges 3 to 5 as an abuse of process.  We grant the application for permission to appeal this ruling.
3.	The respondent has not attended before the court.  She is said to have gone absent without leave.  Notification of the date of appeal has been sent to her last known address and has not been returned.  She is represented at this hearing by counsel.  The appeal before us is on a ground which involves a question of law which was raised in the proceedings below on behalf of the respondent.  There is no practical contribution that she can make to these proceedings and her counsel is in no way hampered from fully representing her interests.  Having regard to R v Charles and Tucker [2001] 2 Cr.App.R 15, we are satisfied that at the very least counsel has implied authority to represent the respondent.  Accordingly, there seems to us to be no reason why we should not proceed with this hearing and Mr Surtees‑Jones representing the respondent has not made any submission to the contrary.  He confirms that the respondent was aware that appeal proceedings were in train.
4.	Charges 1 and 2 arose from an incident on 6th December 2011.  The victims were alleged to be the respondent's partner and another person.  During the police investigation the partner revealed to the police that the respondent had allegedly used violence on her on other occasions between 24th November 2010 and 1st October 2011.  These formed the basis of charges 3 to 5.
5.	The respondent was interviewed in relation to the first two charges on 6th December 2011 and on 28th February 2012 in respect of the remaining matters.  She was told that she would be reported for all the offences.  On 12th July 2012 the SPA directed a trial and the respondent was charged on 28th July 2012.  
6.	It was submitted below on behalf of the respondent that the prosecution for charges 2 to 5 was time‑barred because the respondent should have been charged within six months of the date of the commission of the offences, following the principles set out in section 127 of the Magistrates' Court Act 1980.  For reasons we need not develop, the respondent subsequently conceded that charge 2 came within the six month period and was validly laid, but maintained the challenge in relation to charges 3 to 5.  In addition, if that argument were to fail, the judge was invited by the respondent to stay the proceedings as an abuse of process.  
7.	The essential argument on abuse was that to permit a prosecution on these three charges to proceed would undermine the integrity of the criminal justice system.  The offences are summary offences and would be time‑barred in the civilian courts.  Accordingly, it was argued, an informed observer would be very concerned that a serviceman or woman could be prosecuted for offences where, if he were a civilian and a decision to prosecute had been made in these circumstances by the CPS rather than the SPA, no prosecution would be permitted to proceed.  This was particularly so where there was no specific additional military context to these offences.  
8.	The judge rejected the challenge by reason of time barring.  He declined to read section 42 of the Armed Forces Act 2006 in such a way that it should be read subject to a six month limitation period in relation to summary offences.  He held that section 127 of the Magistrates' Court Act 1980 did not apply in this situation and could not be imported into section 42.  However, the judge did accept the alternative argument based on abuse.  He held that there was no good reason, when there was no specific military context, for a serviceman to be in a worse position than his civilian counterpart or for a prosecution to depend on whether it was brought by the CPS or the SPA.  Such a situation called into question the integrity of the service judicial system and in this case amounted to an abuse of process.  There were, according to the judge, no exigences of military life such as operational requirements to be taken into account in this case.  
9.	The appellant has put forward four grounds in support of its appeal.  First, it supports the judge's ruling that section 127 of the Magistrates' Court Act 1980 which sets a six month time limit for the trying of an information in the Magistrates' Court has no application in a Court Martial:  See R v Buchan [2007] EWCA Crim. 716.  However, the appellant draws attention to R v McCosh [2011] EWCA Crim. 1466 in urging that the judge's power to hold that there is an abuse of process may be limited to those where it is not possible for a defendant to have a fair trial.  
10.	It was acknowledged at the hearing below that the delay in issuing proceedings had not caused prejudice to the respondent so as to render a fair trial impossible.  Accordingly, the written submission made to us appeared to suggest that that limb of abuse of process was unavailable to the respondent and that the judge should not have made a finding of abuse of process based on the alternative second limb recognised in the authorities in circumstances where the court concludes that a stay is necessary to protect the integrity of the criminal justice system ‑ see for example R v Beckford (1996) 1 Cr.App.R 94; R v Maxwell [2011] 2 Cr.App.R 31, and Warren v Attorney General of Jersey [2011] 2 Cr.App.R 29.  
11.	In the alternative, it was submitted that there were no grounds in this case for a finding that the stay was necessary to protect the integrity of the criminal justice system or, as the judge put it, that it would be unfair to try the respondent.  There was no bad faith or other misconduct on behalf of the prosecuting authority or the investigating officers.  It was, submitted the appellant, simply speculative to assert that the public would be concerned by the difference in standing between military personnel and civilians.
12.	Thirdly, it was submitted for the appellant that the respondent could have been tried for the offences in the civilian jurisdiction.  Charge one was an either‑way offence contrary to section 20 of the Offences Against the Person Act 1861 and thus capable of being tried on indictment.  Section 40 of the Criminal Justice Act 1988 permits the addition of summary only offences to an indictment provided they meet certain criteria and are part of a series of offences of the same or similar character to the indictable offence.  In this case, had the matter been tried in the Crown Court, the respondent could have been dealt with on an indictment containing these charges.  This would have been possible even outside the six month time limit for trying an offence in the Magistrates' Court since section 127 is only concerned with the trying of an information in that court.
13.	Thus in truth, the appellant submits, the respondent was not in a worse position by facing trial in Court Martial than she would have been in the civilian jurisdiction.  Mr Surtees‑Jones has recognised the force of this point which was not deployed at the hearing below and concedes before this court that it is a point upon which the appellant must succeed.
14.	Finally, it was argued on behalf of the appellant that there were in fact sufficient service reasons for a prosecution to take place outside the six month time limit which would apply to a civilian.
15.	We are in full agreement with the judge's conclusion that the provisions of section 127 of the 1980 Act cannot avail the respondent.  Those provisions apply only to the trial of informations or complaints in a Magistrates' Court.  They do not apply to proceedings under section 42 of the 2006 Act for the reasons set out in Buchan.  Although Buchan was concerned with a charge under section 70 of the Army Act 1955, a precursor to section 42, there is no material difference between the sections and the reasoning in Buchan is of equal application.  We note that at paragraph 7 of Buchan the court left open the possibility of an abuse of process argument before holding that on the particular facts no such argument could be made out.  The court said: 
"The principle, it seems to us, which would be prayed in aid, if any, would be if it could be said that the consequence of charging him on the date that he was charged in this case in some way prejudiced him to such an extent that it could be said that to proceed with the prosecution would amount to an abuse of process." 
16.	In McCosh, which was a non‑counsel application, Hughes LJ (as he then was) said at paragraph 2:
 "Whilst we do not dissent from the proposition that delay in instituting proceedings may be capable of supporting an application to stay a prosecution for abuse, that would require to be predicated on evidence that a fair trial was not possible. There is no question of a fair trial not being possible in this case, nor was there in any event any procedural rule applicable to this defendant which could arguably be said to have been promulgated for his benefit. It is not correct that section 42 of the Armed Forces Act gives the Court Martial the power to exercise the jurisdiction of the magistrates. It does nothing of the kind. It gives the Court Martial a quite separate jurisdiction which is subject to different rules." 
17.	That passage was pointed to by the appellant in a way which had initially suggested to us that the appellant was arguing that the respondent was precluded from arguing abuse of process in circumstances where it was conceded that a fair trial was possible and where the argument was based on the need to safeguard the integrity of the criminal justice system.  Brigadier Lythgoe has made plain this morning that he is not taking his submission to that length.  What he was merely seeking to do was to emphasise in this case that the only available material for a consideration of abuse was not of a quality which could have availed the respondent in her argument before the court below.  
18.	For the sake of clarity, we indicate that we do not accept that what we had apprehended initially to be the appellant's argument can be properly sustained.  The cases of Buchan and McCosh were both focusing on the issue of delay and section 127.  Neither had to consider the second available limb of abuse of process.  The observations of Hughes LJ should be read in that context rather than as a prohibition on reliance on the second limb of abuse.  
19.	Ordinarily we anticipate that the focus of the court will indeed be upon delay and any prejudice caused by it rendering a fair trial impossible, but that should not shut out the ability in an appropriate case of the court to consider an argument based upon the second limb.  
20.	The approach as to whether a stay is necessary to protect the integrity of the criminal justice system is helpfully summarised by Lord Dyson in R v Maxwell at paragraph 13: 
"It is well established that the court has the power to stay proceedings in two categories of case, namely ...  (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will 'offend the court's sense of justice and propriety' ... or will 'undermine public confidence in the criminal justice system and bring it into disrepute' ... " 
21.	Lord Dyson went on to cite a passage from the speech of Lord Steyn in R v Latif (1996) 1 WLR 104, where Lord Steyn had spoken of conduct which "amounts to an affront to the public conscience and requires the criminal proceedings to be stayed."  
22.	At the hearing below, counsel for the respondent had drawn attention to Rant on the Court Martial and Service Law (3rd Edition) at paragraph 5.17 which recites that section 127 does not "as a matter of strict law" prevent a trial of summary only offences unless the information was laid within six months of the offence.  It then continues: 
"However, as a matter of equity and fairness, it would be wrong to enable charges to proceed to trial in the Court Martial when they would have been procedurally time barred in the civilian courts."
23.	Reference was also made to the Practice Memorandum: section 2 ‑ Time Limits for Summary Offences issued by the Office of the Judge Advocate General (Version 4) in July 2011, which echoes the passage just cited from Rant.  The Practice Memorandum itself acknowledges that it does not enjoy statutory authority.  It describes itself as "persuasive authority" and encourages judges to follow the guidance contained therein.  We do not accept that the guidance in this respect is accurate.  It is clear to us that any decision to stay a case or a charge for abuse of process must be founded on one of the two grounds referred to above.  Simply to extrapolate from section 127, which has no application to Court Martial proceedings, without more, is not sufficient.  The appropriate tests for determining whether a matter should in fact be stayed for abuse of process must be applied.
24.	It is conceded in this case that the respondent cannot satisfy the first limb; thus the focus must be on the second limb.  It is plain to us that the high threshold indicated by Lord Dyson has simply not been reached in this case and that the judge was wrong to hold that it had been.  There is no suggestion here that the prosecution in its widest sense had misconducted itself or acted in bad faith.  Nor is there any suggestion of improper manipulation of the process of the prosecution.  This is a case where there has been some delay, but that is not a matter which goes to the second limb of abuse.  It is a matter which goes to the first limb in relation to which it is conceded that the delay has had no prejudicial effect.  There is nothing to show that the charges and processes in this case, which brought this respondent before the court, have taken place other than normally apart from the passage of time.  The prosecution has laid its charges under legislation recently considered by Parliament which did not choose to fetter the bringing of prosecutions by reference to time limits in the way in which it has done in relation to offences committed by civilians.  In those circumstances, what is said to be the different treatment of service personnel from civilians is sanctioned by Parliament and cannot be described as an affront to public justice or something which compromises the integrity of the justice system.  
25.	In our judgment, the necessary threshold for a stay on the grounds of abuse has not been reached in this case and the judge below was in error to conclude otherwise.  In this context it seems to us that the appellant's argument under ground 3 in relation to the section 40 of the Criminal Justice Act 1988 provides strong additional support.  This is particularly so since rule 26 of the Armed Forces (Court Martial) Rules 2009 provides that the procedures for the hearing at a Court Martial are to approximate so far as possible to the procedures obtaining in the Crown Court.  As we have said, Mr Surtees‑Jones has recognised the force of this particular point and conceded that it must be determinative of this appeal.  We think he was right to make that concession.
26.	In the circumstances therefore, it is not necessary for us to go on to consider the argument and counter-argument in relation to whether or not there were sufficient service reasons for a prosecution to take place outside the six month time limit.  The outcome of the matter therefore is that this appeal succeeds and we order that the stay in relation to charges 3 to 5 inclusive is lifted.