Court of Appeal Clarifies Composition of Court Martial Board for Former Serviceman: R v Muhammad Tariq Bhoyroo

Citation: [2023] EWCA Crim 1625
Judgment on

Introduction

In the case of R v Muhammad Tariq Bhoyroo ([2023] EWCA Crim 1625), the Court of Appeal, Criminal Division, provided judgement on key procedural issues pertaining to the composition of the Court Martial Board. The appeal raised significant concerns regarding the proper interpretation of rules governing the Board’s makeup and the applicable laws when the accused is subject to Service law at the commencement of proceedings.

Key Facts

Muhammad Tariq Bhoyroo, the applicant, faced trial before a Court Martial on charges of controlling or coercive behaviour, and sexual and physical violence against his former partner, referred to as “C.” Both were serving in the armed forces during the alleged offence period, and consequently were subject to Service law. However, by the time charges were laid against Bhoyroo and proceedings had commenced, both he and “C” had been discharged from the Service.

Bhoyroo contended that as a former serviceman who was no longer subject to Service law, he should be tried by a Board comprising purely civilian members. An application was made to Judge Advocate Legard regarding this matter, which was eventually dismissed. The applicant sought to appeal against this ruling.

The Court of Appeal needed to determine the commencement of proceedings and whether a Judge Advocate has the power to direct the Court Administration Officer (CAO) to form a Board composed solely of civilian members, as well as clarify the roles of the Judge Advocate and the CAO in specifying lay members of the Court Martial.

Several legal principles were scrutinized in this case, primarily focusing on the interpretation of the Armed Forces Act 2006 and the Armed Forces (Court Martial) Rules 2009. The key provisions under consideration were:

  • Section 155 of the Armed Forces Act 2006, which dictates the general constitution of the Court Martial, along with a judge advocate and three or six lay members unless prescribed otherwise.
  • Rule 33 of the Armed Forces (Court Martial) Rules 2009, which applies to proceedings when any defendant is not subject to Service law at the commencement of the proceedings, mandating that lay members must be civilians.

The Court had to interpret “the commencement of the proceedings” to determine whether the applicant fell under the category described in Rule 33(5)(a). The broader definition of “proceedings” under Rule 2 was pivotal in reaching a conclusion.

Outcomes

The Court concluded that proceedings against the applicant commenced when he was charged while still subject to Service law, thereby not falling under Rule 33(5)(a). As a result, the rule had no application, and the lay members of the Court Martial were mandated to be officers, in accordance with Section 155(3) of the Armed Forces Act 2006.

The Court also interpreted the roles of the Judge Advocate and the CAO. It determined that decisions relating to the composition of the Board, including the number of lay members and whether they should be civilians or officers, rest with the Judge Advocate. Meanwhile, the CAO is tasked with specifying the individual members from the category or categories directed by the Judge Advocate, without being subject to directions from the Judge Advocate in performing this function.

Conclusion

The Court of Appeal dismissed Muhammad Tariq Bhoyroo’s appeal, affirming that Rule 33(5)(a) of the Armed Forces (Court Martial) Rules 2009 did not apply. Consequently, the CAO must specify that the lay members are officers, reinforcing the principle that the specific composition of the Court Martial in terms of lay members is dictated by the statutory provisions at the commencement of proceedings. The judgement reaffirms the roles of both the Judge Advocate and the CAO in determining and specifying the constitution of a Court Martial Board, which must proceed within established legal and procedural boundaries.