Retired RAF officer pleads guilty to historic sex offences . . . 10 years after retirement

The BBC reported here what may seem surprising news from the Bulford Court Martial Centre in the UK. Eddie Graham, a former RAF intelligence officer pleaded guilty to 9 historic sex offences (and was convicted of assaulting 4 others), 10 years after he retired from HM Forces; the offences themselves occurred 30 years ago. The offences were presumably either 'Indecent Assaults' or 'Gross Indecencies' contrary to the Sexual Offences Act 1956 which would carry a sentence of up to 2 years in the case of indecent assaults or up to 5 years in the case of gross indecencies (although if committed today significantly higher tariffs would apply). Although these offences are civilian offences section 42 of the Armed Forces Act 2006 also makes the offences service offences. However these were serious offences and Mr Graham, who has been a civilian for 10 years now, undoubtedly faces a serious custodial sentence. Why was he not tried in a civilian court? He is now a civilian and his victims were civilians, yet the court is military.

As a general rule, while there is no statute bar to bringing a prosecution of this sort in the civilian courts (and indeed many much older cases are prosecuted) a former serviceman cannot be tried for a service offence unless charged within 6 months of him ceasing to be subject to service discipline. However, s. 61(2) Armed Forces Act allows the Attorney General (currently Rt. Hon. Jeremy Wright QC MP) to consent to a prosecution outside of this time frame. The Attorney General's powers in this respect are very wide and ill defined. In this case though the nexus between the offending and service considerations is extremely close.

• The offending took place at RAF Gatow in Berlin (part of British Forces Germany)
• The victims were the children of fellow servicemen 
• Mr Graham was a scout leader on the base in addition to being a service officer.
• The matter was handed to the RAF Police by civilian police prior to charge.

As such, it is unlikely that the Attorney General will have been much troubled by the request to prosecute in a military court. At trial the Board consisted not of service personnel but of civilian Ministry of Defence officials.

More broadly though the Court Martial has the power to try civilians subject to service law, who are usually the partners and dependents of service personnel on overseas bases. In such circumstances the board will, again be made up of civilian Ministry of Defence officials. However the case of UK v Martin made it clear that trying civilians in Court Martial must only occur when there are compelling reasons backed by clear and foreseeable legal basis, substantiated in each case.

The position is not clear though, as in 2005 Trooper Kevin Williams, 2nd Royal Tank Regiment, was tried at the Old Bailey for the murder of an iraqi civilian during Operation Telic (Operation Iraqi Freedom) by Mrs Justice Hallet (as she then was). In the end the Crown offered no evidence but Lady Justice Hallet as she then was appeared to be very much in favour of this approach during the recent appeal of R v Blackman.

Returning to Mr Graham, who now awaits sentence, it is worth noting that the Court of Appeal (civilian) is currently considering the approach to be taken to sentencing historic sex offences in the case R v Clifford. Although there are undoubted service considerations in this case The Court Martial strives to be as close as possible to their civilian counterparts in both procedure and sentencing.

One to watch . . .