Regular readers may well remember a strange consent order which emerged in the case of Tom Deacon, an RAF veteran challenging a conviction for criminal damage imposed by his commanding officer. Although we still don't know what induced the Judge Advocate General (His Honour Judge Jeff Blackett) to accept he had acted unlawfully we now have the transcript of the subsequent hearing before the Vice Judge Advocate General (His Honour Judge Hunter), it makes interesting reading . . . .
Mr Deacon, representing himself, was applying to appeal against his conviction out of time. Those convicted by summary dealing have an unfettered right to appeal to the Summary Appeal Court within 14 days of the conviction. This right is seen as vital to the continued existence of summary dealing as the process does not conform to Article 6 of the European Convention on Human Rights. However Mr Deacon's appeal was nearly seven years out of time. The appeal is a rehearing of the case before a judge advocate general and two officers, the equivalent to an appeal from the civilian magistrates' court to the Crown Court.
Mr Deacon's right to appeal is controlled by section 141 of the Armed Forces Act 2006:
141 Right of appeal
(1) A person in respect of whom—
(a) a charge has been heard summarily, and
(b) a finding that the charge has been proved has been recorded, may appeal to the Summary Appeal Court against the finding or against the punishment awarded.
(2) Subject to subsection (3), any appeal under this section must be brought—
(a) within the period of 14 days beginning with the date on which the punishment was awarded (“the initial period”); or
(b) within such longer period as the court may allow by leave given before the end of the initial period.
(3) The court may at any later time give leave for an appeal to be brought within such period as it may allow.Three particular points of note:
- If Mr Deacon was granted permission to appeal he intended to admit the offence and thus exchange his spent conviction for a 'live' one.
- The commanding officer admitted that he did not know he was convicting Mr Deacon of a criminal offence!
- The Court's primary focus appears to be preventing future defendants exploiting delays for tactical reasons.
Summary Dealing remains a key plank of service discipline in the UK and is fiercely defended by the three services. Its continued existence is dependent on the unfettered right of appeal to an Article 6 compliant tribunal. The issue here is knowledge. VJAG points out that Mr Deacon did not exercise his right to appeal. However if Mr Deacon's commanding officer did not know the quality of the act when he convicted Mr Deacon, how could Mr Deacon? Especially when he had no right to legal advice prior to the hearing. The result is an unfair and possibly unintended blot on Mr Deacon's character.
VJAG is undoubtedly correct that Mr Deacon will gain nothing if he eventually has the conviction set aside and a re-trial ordered. Clearly some penalty was required, as Mr Deacon admits, for the indiscipline. However it highlights the weaknesses and vulnerability of Summary Dealing.
It is submitted that there are two potential reforms to strengthen the safeguards surrounding Summary Dealing and ensure it remains available as a disciplinary tool for the chain of command:
- Make all convictions imposed via Summary Dealing non disclosable (under any circumstances) following discharge. This makes Summary Dealing a purely military matter.
- Amend s.141 Armed Forces Act 2006 to impose an interests of justice test which would allow an appeal in a wider number of cases.