Westminster (UK) Magistrates Court

1/20/2023

The decision in Rex v. Hayes may be of interest to those serving in the UK, and to legal advisors.

1. The Defendant has been charged with an offence of causing death by careless driving on the 26th of August 2022.

2. She was, at the relevant time, a serving airman with the United States Air Force (‘USAF’) based at RAF Lakenheath.

3. She was driving in her vehicle after a PT instruction session at the base to her home address located some 30 minutes (22 miles) away from the RAF base.

4. En route, her vehicle was involved in a collision with a motor bike.

The NATO SOFA gives the visiting state

primary [] to jurisdiction as regards offences ‘arising out of any act or omission done in the performance of official duty’ lies with the sending state[,]

The visiting state must file an appropriate official duty certificate, which ensued here from the Air Force.

The prosecution challenged the certificate given on behalf of Hayes.

The judge notes the Air Force was given the opportunity to participate in the hearing but did not do so--I wonder why. From my overseas assignments I learned that it was policy to do everything possible to get U.S. jurisdiction, even where the SOFA said primary jurisdiction is with the host nation.

[A] certificate issued by or on behalf of the appropriate authority of the sending country, stating that the alleged offence, if committed by him, arose out of and in the course of his duty as a member of that force or component, as the case may be, shall in any such proceedings as aforesaid be sufficient evidence of that fact unless the contrary is proved.

Oh, what did the judge decide about jurisdiction. Well, examining the evidence the judge holds that the certificate is rebutted. Driving home from work in PT gear, coming from PT was not in the course of official duty, thus Hayes is subject to UK prosecution.

We thank Brigadier (Ret) Paphiti at Aspals for bringing this case to our attention.

Donald G Rehkopf, Jr.

1/20/2023 11:10:32

"The judge notes the Air Force was given the opportunity to participate in the hearing but did not do so--I wonder why."

While I can only speculate, it sounds like there wasn't a good working relationship with the Crown Prosecution Service and the SJA's office. Generally, those disputes are worked out well in advance.

Donald G Rehkopf, Jr.

1/20/2023 13:25:00

The Judge's opinion also notes:

"At the conclusion of the initial hearing, I gave the opportunity to the United States Air Force to address me as an ‘amicus’ of the court and indicated the sorts of evidence/material that might be useful in resolving this issue. They have chosen not to attend, nor make any submissions."

I wonder what happened to the old USAFE policy of "maximizing jurisdiction" in SOFA cases?

Philip Cave link

1/20/2023 13:54:19

Not sure of the appellate process, but perhaps that's where USAFE or a State rep might intercede?

If the magistrate level ruling ultimately becomes the law, then that would seem to undercut the division of jurisdiction agreed to in the SOFA and make more servicemembers amenable to UK courts. Not necessarily a bad thing because the defendant may fair better in a British court than at a court-martial.

Donald G Rehkopf, Jr.

1/20/2023 15:30:22

Well, when I was stationed in Germany, the practice was that jurisdictional issues were decided first - primarily because of the NATO SOFA's "double jeopardy" provisions. I haven't looked to see if that's been changed or not.

I had a client prosecuted in German Court - the Army was waiting for the conviction and were then going to Chapter him out. But, my client was only 18, the offenses were public intox and peeing in public, both misdemeanors, client took a plea and got a small fine, and because he qualified for their version of youthful offender, all records were sealed. Later when the Army tried to get the court records/transcript, the German judge refused, so the client got booted, but with an Honorable.

Nathan Freeburg

1/21/2023 13:00:20

My understanding is that "maximizing military jurisdiction" is not the current policy with regard to some SOFAs/allied jurisdictions. I don't know what it is for the UK.

Alan

1/21/2023 10:51:50

A few years ago BC (which used to mean Before Christ, but now means Before Covid) there was US dependant spouse involved in auto accident that killed a UK citizen. She was whisked away to US, which refused to extradite her. A bit of a diplomatic kerfuffle ensued. I think she eventually was tried via video from US, but sentence is moot unless she returns to UK.

Anyway, I wonder if the charging in current case is somewhat influenced by what happened in earlier case.

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