R v Martin (Alan)

A criminal process authorised and conducted in accordance with a statutory scheme does not become an abuse merely because another lawful mode of trial might have been preferable. Trial by court-martial of a civilian or juvenile for an offence committed abroad was expressly contemplated by the Army Act 1955.

Pre-trial conduct may nevertheless constitute abuse where it involves fundamental unfairness, threatens basic human rights or the rule of law, or makes continuation of the prosecution unconscionable. The accused must establish an adequate evidential basis for that conclusion. Where the statutory appellate jurisdiction permits an appeal against conviction only when the conviction is unsafe, proof of abuse must also satisfy that statutory ground.

The appellant, a civilian aged 17, was living in Germany with his father, a serving British soldier, when he was charged with murder. As a family member accompanying the armed forces abroad, he was subject to military law. After his family returned to England, he remained amenable to trial for the alleged offence and was returned to Germany for a court-martial. He was convicted following a trial whose fairness and regularity were not challenged.

The Courts-Martial Appeal Court dismissed his appeal. It certified whether proceedings regularly constituted and conducted under the Army Act 1955 could nevertheless be an abuse of process.

The appeal to the House concerned whether the appellant should instead have been tried by jury in England under section 9 of the Offences Against the Person Act 1861, and whether the military authorities' pre-trial decisions were fundamentally unfair.

1. Appeal dismissed unanimously. Lord Lloyd of Berwick delivered the leading speech, with which Lord Browne-Wilkinson and Lord Slynn of Hadley agreed. Lord Hope of Craighead and Lord Clyde delivered concurring speeches.

2. Per Lord Lloyd and Lord Hope, trial by court-martial could not itself be characterised as an abuse merely because the accused was a civilian juvenile who could have been tried by jury in England. Sections 70, 71A, 209 and Schedule 5 to the Army Act 1955 showed that Parliament contemplated court-martial proceedings against civilians accompanying the forces abroad, including juveniles charged with murder.

3. Per Lord Lloyd and Lord Hope, abuse of process is not confined to prosecutorial manipulation or misconduct during the trial. Pre-trial conduct may justify intervention where it is fundamentally unfair or threatens basic human rights or the rule of law. The facts fell far short of that standard. The proceedings were lawfully instituted, the trial was fair, and the availability of important German factual and expert witnesses provided a legitimate reason for trial in Germany.

4. Per Lord Lloyd, the appellant had not established that the commanding officer failed properly to consider section 77A of the Army Act 1955. There is no presumption of irregularity. Even a conclusion that a stay would have better served the administration of justice would not suffice; the failure to stay had to amount to abuse. The decisions of the higher authority and Attorney-General were likewise open to them.

5. Per Lord Hope, section 77A conferred a discretion and imposed no duty to consult the accused or consider prosecution in England. Lord Clyde differed on this point, considering that the commanding officer had to apply his mind to a possible stay, but concluded that neither a failure nor an irrational choice of forum had been proved.

6. Per Lord Lloyd, the accused had an effective opportunity to challenge jurisdiction and allege abuse at the commencement of the court-martial under rules 36 to 38 of the Rules of Procedure (Army) 1972. Any absence of earlier representations did not constitute abuse.

7. Per Lord Lloyd, Lord Hope and Lord Clyde, the statutory appeal could succeed only if the conviction was unsafe. Nothing in the available material established unsafety. The certified question was answered negatively by the majority; Lord Clyde would have answered it affirmatively in principle, but only where fundamental injustice was established.

1. House of Lords: The appeal was dismissed unanimously. The majority answered the certified question negatively, subject to the continuing jurisdiction to prevent fundamentally abusive pre-trial conduct.

2. Courts-Martial Appeal Court: The appeal against conviction was dismissed because the appellant had been tried under the procedure prescribed by Parliament and the proceedings were not abusive. The court certified the question whether regularly constituted and conducted court-martial proceedings could nevertheless be an abuse of process.

3. General court-martial: The appellant was convicted of murder following a trial in Germany.