Monday, August 17, 2015

The one where the 'Judge' and 'Defendant' didn't know...

Tom Deacon
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:
  1. If Mr Deacon was granted permission to appeal he intended to admit the offence and thus exchange his spent conviction for a 'live' one. 
  2. The commanding officer admitted that he did not know he was convicting Mr Deacon of a criminal offence!
  3. 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. 
Hearing Transcript



  1. There is a similar issue in Canadian military law. Pursuant to Criminal Records Act (RSC, 1985, c. C-4) paragraph 4(1)(b), service offence convictions at summary proceedings (defined as 'service tribunal' by the National Defence Act, section 2) constitute a conviction for the purpose of the act. Recently, Bill C-15 (An Act to amend the National Defence Act and to make consequential amendments to other Acts, (2013) SC c. 24) clause 75 proposed to alleviate those consequences by providing that a person who is convicted of specific offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence, provided the punishment did not pass a certain threshold. As a matter of fact, this would cover 95% of the cases dealt with by summary trials. Unfortunately, this amendment is not yet in force. On the other hand, more recent Bill C-71 tabled in June proposes a paradigm shift: a 'disciplinary infraction' would not be an offence under the National Defence Act and would not constitute an offence for the purposes of the Criminal Records Act.

  2. It cannot be right that both defendant and judge misunderstand the charges faced. The Commanding Officer in my case told the Service Prosecuting Authority before my first appeal that he had no idea that his findings would result in a criminal record.

    The Service Prosecuting Authority chose to withhold that information at Appeal, and instead stated I would have been "fully aware of the charges faced." When my MP wrote to the MOD, the ministerial response was that "All Service Personnel are made fully aware at every stage of the particulars of the charges faced." This is simply not true, I am not alone in only discovering a criminal conviction after a CRB check. It has been acknowledged Service Personnel have been unaware in other cases, I Think this situation should certainly provide grounds for appeal, and is completely unacceptable that a Serviceman can be marched into an office, and receive a Criminal Record without he or his Commanding Officer realising.

    The Military must maintain discipline and a public hearing with access to a lawyer for each and every minor Service Offence would be detrimental to the Armed Forces. I also believe that a defendant must have these rights maintained if an is serious enough to merit a Criminal Record. Like the author of this blog, the only solution I can see is a complete separation of Service and criminal offences. Whereby Minor non criminal service offences can still be heard by Commanding Officers and any Criminal offences are heard by Court Martial or Civilian Courts.

  3. Posted in 2 Parts - PART 1

    This case demonstrates the unsuitability of a summary justice system dealing with criminal offences or, as the Engel case identified, offences for which the severity of punishment would equate to a criminal offence. Engel also pointed out that the definition of an offence is not conclusive (disciplinary/criminal) as it is not for states to define what is or is not a crime. "Disciplinary sentences, in general less severe, do not appear in the person’s criminal record and entail more limited consequences. It may nevertheless be otherwise; moreover, criminal proceedings are ordinarily accompanied by fuller guarantees." [Ibid, §80]. If "the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will." [Ibid §81].

    It is interesting that we seem to afford more rights to convicted prisoners than Servicemen. In Ezeh and Connors v. UK, Applications 39665/98 and 40086/98 (Grand Chamber) 2 civilian prisoners were denied legal representation before an adjudication hearing with the governor for what was effectively an offence of assault. Both were awarded additional custody. The ECtHR found the nature of the charges, together with the nature and severity of the penalties, were such that the charges against the applicants constituted criminal charges within the meaning of Art 6 ECHR. It also found a violation of art 6(3) concerning the right to legal representation.

    It seems to me that the real nub of the argument advanced by Mr Deacon is the issue of knowledge of consequences of his decision to accept the summary award rather than go before a compliant court. Section 276 AFA 2006 provides, if the CO records a finding that the charge has been proved, or the SAC substitutes a finding that a charge in respect of another offence has been proved, that shall be treated as a conviction. Any punishment awarded by the officer, or by the Summary Appeal Court, shall be treated as a sentence. While ignorance of the law is not, as they say, an excuse, it seems pretty unfair to penalise someone who is not only an unrepresented layman, but who is not allowed to be represented, for failing to know the law. /

    1. Part 2
      There is evidence of other servicemen being unaware of the consequences of a finding of guilt at summary dealing. See, eg, the case of LCpl Isimeli "Bale" Baleiwai, who was refused British citizenship after voluntarily leaving the Army and was ordered to be deported on the 9 August 2012. He had a disciplinary record for an offence that equated to a criminal offence in that he was involved in an altercation (fighting) with another soldier. L/Cpl Baleiwai accepted a £1,000 fine.

      AFA 2006 actually exacerbated matters as it increased summary punishments significantly and even the severity of offences which can be dealt with by a CO. For example, the offence of Assault Occasioning Actual Bodily Harm (s.47 Offences Against the Person Act 1861) carries a maximum sentence on indictment of 5 years imprisonment (the same as wounding/inflicting grievous bodily harm under s.20 of that Act), yet it is a Schedule 1 offence with which the CO can deal. It seems to be a totally inconsistent with the Engel criteria.

      The answer seems straightforward:

      1. Either ensure there is legal representation and/or a legally qualified judge advocate conducting the summary hearing or,

      2. Provide that

      a. all criminal offences should be tried only by a compliant court, with no discretion afforded to a CO; and

      b. any disciplinary offence punishable by more than, say, 14 days detention (or requiring transfer to MCTC) (see Engel) should be regarded as a criminal offence and be triable by Court Martial only;

      3. Ensure that summary findings of guilt are not recorded as criminal offences.

  4. I do not necessarily agree agree that my spent conviction, if quashed should be reinstated as a live one. From what I understand of the Armed Forces Act 2006 is that any appeal of a Conviction to the Summary Appeal Court can result in no greater punishment than that awarded originally by a Commanding Officer. This is because the potential
    prospect of an increase in punishment at the Summary Appeal Court, would serve to deter an appeal. Any deterrent to appeal from a non Article 6 compliant court is unlawful.

    After a conversation with the Service Prosecuting Authority Prosecutor in my case, he was of the opinion that a spent conviction if it were to be re-dated to the date of the appeal, (and result in a longer rehabilitation period,) would also serve to deter potential appeals and be incompatible with Article 6 of the Convention of Human Rights.

    Unfortunately his view is not shared by the Vice Judge Advocate General. There must have been hundreds of appeals to the Summary Appeal Court, and it must have been established already if the date of conviction is the date of the original Summary Hearing or the Summary Appeal Court hearing. My request to the MOD on this has been unanswered. It seems that the MOD seem to make up the law as they go along and is anything but clear and transparent.

    Regardless of the potential risk of my Conviction being re-instated as a live conviction, I wish to pursue this further as I believe it is the only way to prove that I was told to waive my right to legal representation during my RAF police interview.


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