Regina v. Martin

The House of Lords dismissed the appeal against conviction, holding that a properly constituted court-martial conducted under the Army Act 1955 is not in itself an abuse of process even where the accused is a civilian and a juvenile and could, in theory, have been tried in the United Kingdom under section 9 of the Offences Against the Person Act 1861. The court emphasised that Parliament authorised trial by court-martial for civilians accompanying the forces abroad (see sections 70 and 209 of the Army Act 1955 and section 71A as inserted), and that section 77A (stay power) does not impose a duty on commanding officers or higher authority to refer every case to the civil courts; a failure to exercise that discretion is not necessarily an abuse.

Where abuse of process is alleged, the court will intervene only in exceptional circumstances amounting to something so unfair and wrong as to threaten basic human rights or the rule of law (following Hui Chi-Ming and Horseferry/Bennett). The House found no such fundamental unfairness on the facts: relevant considerations included the availability of crucial German witnesses, the statutory procedures followed (including Attorney-General's consent under section 132(3A)), and the absence of material showing a misuse of process or collusion. Procedural opportunities to raise objections under the Rules of Procedure (Army) were available and were used. The conviction was therefore not shown to be unsafe.

The appellant, Alan Martin, a civilian who was 17 at the time of the alleged murder committed in Germany, was tried by general court-martial in Mönchengladbach, convicted and appealed. The Courts-Martial Appeal Court dismissed his appeal and certified the following question of law to the House of Lords: whether regularly constituted and conducted court-martial proceedings under the Army Act 1955 may nonetheless be an abuse of process.

Nature of the appeal: appeal against conviction alleging abuse of process because a civilian juvenile, returned to the United Kingdom prior to trial and eligible for jury trial under section 9 of the Offences Against the Person Act 1861, was sent back to Germany to be tried by court-martial.

Issues framed:

• whether lawful court-martial proceedings can be stigmatised as an abuse of process;
• whether the commanding officer, higher authority or the Attorney-General failed to exercise statutory discretions (notably under section 77A, section 80 and section 132(3A) of the Army Act 1955) such as to render the prosecution an abuse;
• whether the accused was deprived of an opportunity to make representations and whether refusal of an adjournment to seek judicial review rendered the conviction unsafe.

Court's reasoning: the Lords analysed the statutory framework permitting court-martial jurisdiction over civilians accompanying the forces abroad (sections 70 and 209 and section 71A in relation to juveniles), the limited scope of section 77A (a discretionary power to stay proceedings) and the Attorney-General's role under section 132(3A). They accepted that the categories of abuse of process are not closed but emphasised that intervention is only appropriate where there is conduct so unfair as to threaten basic human rights or the rule of law. The House examined the facts known to it — including the difficulties of adducing crucial German witnesses in an English court, the steps taken to provide legal representation and the availability of procedural remedies under the Rules of Procedure (Army) — and concluded there was no abuse of process and no basis to hold the conviction unsafe. The appeal was dismissed.

Appeal dismissed. The House held that a court-martial properly constituted and conducted under the Army Act 1955 is not, as such, an abuse of process; allegations that commanding officers or the Attorney-General should have stayed proceedings so that the accused could be tried in England were not shown, on the material before the court, to amount to conduct so unfair as to render the conviction unsafe. Considerations such as the statutory scheme (sections 70, 71A, 77A, 79, 80, 131 and 132), the availability of German witnesses and the procedural protections available at court-martial led to dismissal of the appeal.

Convicted after a general court-martial at Mnchengladbach (trial concluded 3 May 1995). Appeal to the Courts-Martial Appeal Court was dismissed, which certified a question of law to the House of Lords. Appeal to the House of Lords was dismissed (House of Lords decision [1997] UKHL 56).