Shuttlewood, R (On the Application Of) v Ministry of Defence

The Solicitor General may exercise any function of the Attorney General under the Law Officers Act 1997. A function exercised in that capacity has effect as if exercised by or in relation to the Attorney General. A consent to prosecute outside the statutory time limit under the Armed Forces Act 2006 need not be expressed in the Attorney General’s name or accompanied by reasons. Nor is there a requirement to communicate the consent to the defendant before court martial proceedings begin.

The claimant, a civilian subject to service jurisdiction, had been convicted by court martial of sexual offences committed in Germany. His application for leave to appeal to the Court Martial Appeal Court had been refused.

He renewed an application for permission to judicially review the Ministry of Defence’s decision to prosecute him outside the statutory time limit. He challenged the Solicitor General’s consent under section 61 of the Armed Forces Act 2006, alleging that it required reasons, had to be expressed in the Attorney General’s name, and had not been communicated before proceedings commenced.

1. Permission refused. Neither ground was arguable.
2. Under section 1 of the Law Officers Act 1997, any function of the Attorney General may be exercised by the Solicitor General. Anything done by the Solicitor General in exercising or in connection with that function has effect as if done by or in relation to the Attorney General. Accordingly, the Solicitor General’s consent to prosecution outside the ordinary time limit was valid even though it was expressed in his own name.
3. Section 61 of the Armed Forces Act 2006 did not require the Solicitor General to give reasons explaining why court martial proceedings were appropriate rather than trial by jury. The challenge was also directed against the Ministry of Defence, rather than the Attorney General.
4. There was no requirement that consent to prosecute outside the statutory time limit be communicated to the defendant before court martial proceedings commenced. The claimant’s further arguments concerning the exhibit list and admissions at trial therefore could not make the challenge arguable.
5. The claimant’s application for permission to apply for judicial review was refused.

The judgment records that leave to appeal the claimant’s court martial convictions was refused by the President of the Queen’s Bench Division and Holgate J on 20 July 2016. This was a renewed application for permission to seek judicial review.