H & J, R.

A judge advocate must use Rule 26 of the Armed Forces (Court Martial) Rules 2009 to ensure a procedurally comparable means of applying to dismiss an insufficient case is available in preliminary Court Martial proceedings. The comparable Crown Court dismissal provision does not directly apply to a Court Martial, but Rule 26 requires an analogous procedure where there is no materially comparable Crown Court process. There was no service reason to deny a defendant that procedural protection.

Rule 25(3) is not a free-standing jurisdiction to terminate proceedings on evidential insufficiency at arraignment. Read in context, it concerns administrative difficulties affecting the constitution or conduct of the board. Rule 26 concerns procedure only and cannot import substantive law into the Service justice system.

H and J were charged in the Court Martial with conspiracy fraudulently to evade duty on duty-free cigarettes. Before arraignment, they sought leave to apply for dismissal on the ground that the prosecution evidence was insufficient for a properly directed board safely to convict.

The Judge Advocate General ruled that neither Rule 26 of the Armed Forces (Court Martial) Rules 2009 nor Rule 25(3) permitted such an application before arraignment. He considered that the Crown Court dismissal procedure in paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 could not be imported into Court Martial proceedings.

The applicants sought leave to appeal against that preliminary ruling. The central issue was whether Rule 26 required a comparable procedural route for an application to dismiss an insufficient case.

1. Leave was granted and the appeal allowed. The Judge Advocate General’s ruling was reversed. The case was directed to be listed before a judge advocate to hear the applicants’ application to dismiss.

2. Rule 25 of the Armed Forces (Court Martial) Rules 2009 had to be read ejusdem generis. Its express provisions concern difficulties in the constitution and continued functioning of the board. Rule 25(3) accordingly supplies a discretionary power in comparable administrative circumstances, such as doubt about the board’s competence or impartiality. It is not a stand-alone or residual jurisdiction at arraignment to terminate a case because the prosecution evidence is insufficient.

3. Rule 26 has a different function. It requires the judge advocate to conduct proceedings as closely as possible to comparable Crown Court proceedings. If no comparable Crown Court procedure can be identified, the judge advocate must conduct the proceedings in the interests of justice. The Crown Court procedure in paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 arose from the statutory sending process from the magistrates’ court and did not directly apply to the Court Martial.

4. That statutory difference did not end the issue. There is no equivalent summary sending procedure to the Court Martial. Rule 26 therefore required the judge advocate to provide a comparable procedural means for a Service defendant to seek dismissal where the evidence was insufficient. The court identified no service reason for withholding that protection.

5. The conclusion was confined to procedure. Rule 26 does not authorise the importation of substantive law into the Service justice system.

• Court Martial Appeal Court: Leave to appeal was granted. The court reversed the preliminary ruling and directed that the dismissal application be heard.

• Court Martial, Military Court Centre, Catterick: On 4 June 2019, the Judge Advocate General ruled that the applicants could not apply before arraignment to dismiss the charges for insufficiency of evidence.