§ Lord Wigg
asked Her Majesty's Government:
By what authority in the light of the Rules of Procedure (Air Force) 1972 the Judge Advocate General has directed judge advocates invariably to advise courts martial that submissions of no case to answer should be determined by the full court and not by a judge advocate sitting alone, and whether they will make a statement.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
The Judge Advocate General has given no such direction. The president of a court martial has power under Rule 81(1)(f) of the Rules of Procedure (Air Force) 1972 to direct that a submission of no case to answer be determined by the judge advocate sitting alone. Guidance as to the use of this power is contained in note 5 to that rule on p.580 of the Manual of Air Force Law.
The Judge Advocate General was recently invited to consider the revision of this note in the light of the judgment of the Court of Appeal in the case of R. v. Galbraith (which dealt with the way in which judges in the Crown Court should approach similar submissions). He approved the following revised version of the note for insertion in the Manual of Air Force Law as soon as possible and informed judge advocates accordingly:Where a submission is made under rule 58, it is not envisaged that the judge advocate will be directed to deal with that submission as a matter of course. The president should consider which course seems best calculated to do justice, taking into account any advice given by the judge advocate. The type of case in which it will be appropriate to direct that the submission shall be heard and decided by the judge advocate sitting alone is that in which it is submitted that there is no evidence on which it is open to the court, even if they believe the evidence for the prosecution, to find the accused guilty of the charge. Where the submission is that the evidence for the prosecution is so weak, vague, contradictory or otherwise unreliable that the court ought to decide at that stage that it could not convict on it, the submission should be decided by the court after advice in open court from the judge advocates. If a submission under r. 58 is heard by the judge advocate alone and he rules that it should be disallowed, he should shortly state his reasons when announcing his ruling to the court.