S, R v (Rev 1)

A six-month limit under Magistrates' Court Act 1980, section 127, applies to informations and complaints tried in a Magistrates’ Court. It does not govern a Court Martial exercising its separate jurisdiction under Armed Forces Act 2006, section 42.

An abuse-of-process stay remains available where a fair trial is possible, but only where the trial would offend justice and propriety or undermine public confidence in criminal justice. That demanding threshold is not met merely because service legislation permits a prosecution which might be time-barred in the Magistrates’ Court. In particular, Parliament’s decision not to impose the civilian time limit is not itself an affront to public justice.

The Service Prosecution Authority appealed against a preliminary ruling of Judge Large, Assistant Judge Advocate General, at the Sennelager Court Martial Centre. The respondent faced one allegation of grievous bodily harm and four allegations of battery, prosecuted as civil offences under Armed Forces Act 2006, section 42.

The judge rejected the respondent’s argument that three battery charges were time-barred by section 127 of the Magistrates' Court Act 1980. He nevertheless stayed those charges as an abuse of process because they would have been time-barred in the civilian Magistrates’ Court and lacked a particular military context. The central issue was whether that difference justified a stay to protect the integrity of the criminal justice system.

1. Appeal allowed. The stay of charges 3 to 5 was lifted.

2. Section 127 of the Magistrates' Court Act 1980 applies only to the trial of informations or complaints in a Magistrates’ Court. It has no application to proceedings under section 42 of the Armed Forces Act 2006, which confers a separate Court Martial jurisdiction subject to different rules. The reasoning in R v Buchan [2007] EWCA Crim. 716, concerning the predecessor provision in the Army Act 1955, applied equally.

3. The court rejected any suggestion that abuse of process is confined to cases in which a fair trial has become impossible. The authorities recognise a second category: a stay may be necessary to protect the integrity of criminal justice where trying the accused would offend justice and propriety or undermine public confidence. The observations in R v McCosh [2011] EWCA Crim. 1466 concerned delay and did not exclude that second category.

4. The second category has a high threshold. There was no allegation of bad faith, misconduct, or manipulation of the prosecutorial process. The delay caused no prejudice capable of preventing a fair trial. Parliament had not imposed a civilian-style time limit on service prosecutions, so the resulting difference from civilian procedure could not itself amount to an affront to public justice.

5. Further, the respondent was not necessarily in a worse position than a civilian. The grievous-bodily-harm charge could have been tried on indictment, and section 40 of the Criminal Justice Act 1988 could permit related summary offences to be included on that indictment. Rule 26 of the Armed Forces (Court Martial) Rules 2009 also supports approximation, where possible, to Crown Court procedure.

• Courts Martial Appeal Court: allowed the Service Prosecution Authority’s appeal and lifted the abuse-of-process stay on charges 3 to 5.
• Court Martial preliminary hearing: Judge Large rejected the statutory time-bar argument but stayed charges 3 to 5 as an abuse of process.