| MILITARY LAW — Court-martial — Prosecutor’s appeal — Judge Advocate ruling prosecution abuse of process — Prosecutor failing to inform court, at or before informing of intention to appeal, of agreement that accused in relation to the charge should be acquitted if leave to appeal not obtained — Whether right of appeal where undertaking not given — Courts-Martial (Prosecution Appeals) Order 2006 (SI 2006/1786) art 4
R v A (LS); [2008] WLR (D) 174
CtMAC: Hughes LJ, Treacy J and Sir Peter Cresswell: 16 May 2008
The Courts-Martial Appeal Court had no jurisdiction to entertain an appeal by a prosecutor unless, at or before informing the court that it intended to appeal, it agreed that, in respect of the charge which was the subject of the appeal, the accused in relation to that charge should be acquitted of that charge if leave to appeal was not obtained.
The Courts-Martial Appeal Court so held when refusing an application by the Royal Air Force Prosecuting Authority, pursuant to art 4 of the Courts-Martial (Prosecution Appeals) Order 2006 (SI 2006/1786), for leave to appeal a ruling by Assistant Judge Advocate McGrigor made on 13 December 2007 at a district court-martial held at Bulford Military Court Centre in relation to two charges alleging that the defendant, LSA, had disobeyed station standing orders, namely driving when unfit to do so through drink and dangerous driving. The Judge Advocate had directed that the court to find the accused not guilty in relation to the unfit to drive charge and subsequently he ruled that since there had been a verdict of acquittal on the unfitness to drive charge the continued prosecution of the defendant on the dangerous driving charge would be an abuse of process.
The Courts-Martial (Prosecution Appeals) Order 2006, art 4 provides: (4) The prosecution may not appeal in respect of the ruling unless — (a) following the making of the ruling it (i) informs the court that it intends to appeal, …(8) The prosecution may not inform the court in accordance with paragraph (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the charge or each charge which is the subject of the appeal the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (9) is fulfilled. (9) Those conditions are — (a) that leave to appeal to the Courts-Martial Appeal Court is not obtained, and (b) that the appeal is abandoned before it is determined by the Courts-Martial Appeal Court.”
HUGHES LJ, giving the judgment of the court, said that the transcript of the proceedings demonstrated that at no time on 13 December did the prosecutor inform the court that he agreed that the defendant should be acquitted of either charge if the paragraph 9 conditions should be fulfilled. The art 4(8) undertaking, or “acquittal agreement,” was crucial to the new right of appeal. It was that which determined whether there was a right of appeal or not. The criterion for the right to seek leave to appeal was the giving of the acquittal agreement as acceptance of the price of failure. In the present case the Crown did not give an undertaking until the service of the written notice of appeal which bore the date 19 December, six days after the hearing at which the rulings were made. Art 4 of the Order was in terms materially identical to s 58(8) of the Criminal Justice Act 2003. Prosecutors who wished to launch appeals against rulings had to give the art 4(8)/s 58(8) undertaking in open court at the time of invoking the right of appeal. There was therefore no jurisdiction to hear the appeal against either of the Judge Advocate’s rulings.
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