1.  In January 2005, Guardian Newspapers, along with four other media organisations, (Times Newspapers Limited, Telegraph Group Limited, Mirror Group Newspapers, and ITN) instructed leading Counsel to appear in the court martial of Fusilier Bartlam.

  2.  On 10 January 2005, Mr Nicol QC made an application before Judge Advocate Hunter in Hohne, Germany that reporting restrictions should not be imposed under section 4(2) Contempt of Court Act 1981.  After hearing submissions, Judge Advocate Hunter imposed an Order postponing reporting of Fusilier Bartlam's court martial until the end of the subsequent courts martial (Kenyon and others) which were due to commence the following week.

  3.  Mr Nicol QC concluded that the media could not appeal the Judge Advocate's Order to either the Court of Appeal or the Court Martial Appeal Court and that the High Court's jurisdiction to judicially review the Order had been removed.

  4.  This situation appears to be the result of amendments introduced by the Armed Forces Act 2001. Until 2002, courts martial were subject to judicial review. However, s 23 Armed Forces Act 2001 provided that the following be inserted in s 29 Supreme Court Act 1981.

"3A  (the High Court shall have no jurisdiction to make Orders of Mandamus, Prohibition or Certiorari in relation to the jurisdiction of a Court Martial in matters relating to

  (a)  Trial by Court Martial for an offence . . . "

  Section 23 came into force on 28 February 2002.  In consequence of this change, the power of the High Court to exercise judicial review of a court martial in relation to the trial for an offence is excluded in the same way as s 29(3) of Supreme Court Act 1981 excludes the High Court's power to judicially review a Crown Court in matters relating to trial on indictment.

  5.  The justification for the Armed Forces Act 2001 and the exclusion of the judicial review route of appeal seems to have been that this form of supervision was unnecessary since the defendant who was convicted by a court martial has an opportunity to appeal to the Court Martial Appeal Court which is composed of the judges of the Court of Appeal Criminal Division. However, this right of appeal for a defendant, conferred by the section 8 Courts Martial (Appeals) Act 1968 is of no help to a media organisation that is aggrieved by a reporting restriction order. The right of appeal is given exclusively to "a person convicted by Court Martial". Quite simply, the omission to give the Courts Martial Appeals Court a power equivalent to section 159 of the Criminal Justice Act 1988 appears to have been overlooked.

  6.  Accordingly, leading Counsel advised that the media had no readily identifiable means of challenging the Judge Advocate's Order imposing reporting restrictions in the court martial proceedings.

  7.  We do not believe that this was the government's intention and it appears to be an oversight.

  8.  We would be grateful if you could ensure the Armed Forces Bill is amended to include a provision similar to s159 Criminal Justice Act 1988 to ensure that media organisations have an appeal route by which they could challenge reporting restrictions in future court martial proceedings.

  We are grateful for your consideration and look forward to hearing from you.

January 2006