R v Muhammad Tariq Bhoyroo

For the purposes of Rule 33(5)(a) of the Armed Forces (Court Martial) Rules 2009, “proceedings” may encompass the criminal process from charging and allocation for trial. They do not begin only at the first hearing, arraignment or trial. Where proceedings began while the defendant was subject to Service law, Rule 33 does not apply and section 155(3) of the Armed Forces Act 2006 requires the lay members to be officers. Where civilians are legally permitted, the Judge Advocate determines the permitted categories and the Court Administration Officer selects the individual members.

The applicant faced 11 charges before a Court Martial arising from alleged offences against his former partner. He had been discharged from the armed forces after the charges were laid and sought a civilian-only Board, arguing that the offences were domestic and had no operational connection with Service life.

Judge Advocate Legard dismissed the application, holding that he had no power to direct the Court Administration Officer on the Board’s composition, and did not decide when the proceedings commenced. The applicant appealed out of time. The central issues were the meaning of “commencement of the proceedings” under Rule 33(5)(a) and the respective powers of the Judge Advocate and Court Administration Officer.

1. Disposition. The court granted the extension of time and leave to appeal, but dismissed the appeal. The Judge Advocate had reached the correct result, although part of his reasoning was wrong.
2. Commencement of proceedings. The court construed “proceedings” in Rule 33(5)(a) by reference to the ordinary meaning preserved by Rule 2. The definition is not confined to a preliminary hearing, arraignment or trial. It may include the whole criminal process from the Director of Service Prosecutions charging, or directing the charging of, a defendant under sections 121 and 122 of the Armed Forces Act 2006, including allocation for trial in the Court Martial. The proceedings therefore began when the applicant was charged on 18 May 2023, when he was subject to Service law.
3. Composition of the Board. Since Rule 33(5)(a) did not apply, the general rule in section 155(3) of the Armed Forces Act 2006 applied. The lay members were required to be officers. A civilian-only Board was consequently unavailable.
4. Roles of the Judge Advocate and CAO. The court held, on the assumed basis that Rule 33 applied, that the Judge Advocate decides the legally permitted composition categories, including whether members must be civilians, officers or a mixture. That direction binds the Court Administration Officer. The CAO’s exclusive function is to specify the individual members from the directed category or categories. The court noted the importance of the CAO’s independence, arising from the concerns identified in Findlay v United Kingdom [1997] 24 EHRR 22.
5. Reporting restriction. The court made no order postponing publication under section 4(2) of the Contempt of Court Act 1981 and did not direct expedition of the transcript.

• Court of Appeal (Criminal Division) [2023] EWCA Crim 1625: granted the extension of time and leave to appeal, but dismissed the appeal.
• Preliminary proceedings before Judge Advocate Legard: dismissed the application for a direction requiring a civilian-only Court Martial Board, holding that the Judge Advocate had no power to direct the Court Administration Officer and leaving the commencement issue undecided.