Saturday, November 5, 2016

Deacon v. Summary Appeal Court -- a comment from Mr Deacon

Royal Courts of Justice, London
Tom Deacon has provided the following post to Global Military Justice Reform, concerning his unsuccessful effort to challenge a decision of the Summary Appeal Court. The decision of the High Court can be found here. Anyone who has practiced law knows that clients -- bless them -- often have quite a good sense of right and wrong. See what you think. I give the floor to Mr Deacon:
It is certainly not uncommon for a convicted criminal to protest to anyone who will listen, as to why a particular judge was wrong and how the system is unfair. The internet is full of blogs on this subject. Having had an appeal to the Summary Appeal Court dismissed, and subsequent Judicial Review judgement find in favour of the Summary Appeal Court, I would certainly understand if you decided to read no further.

For those with a more inquisitive mind, or if you bizarrely relish the prospect of being outraged at the notion an individual who is completely unqualified in any aspect of law, attempting to dispute the judgment of a respected High Court Judge. I will attempt to formulate my argument as to why I believe the Judge to have erred in law.

In the Judicial Review, Mr Justice Wyn Williams concluded the admission was unequivocal and no injustice arose. (Apart from the obvious injustice of not knowing that you have a Criminal Record, and upon discovery, being unable to do anything about, it by being refused your right a fair trial.) My fundamental argument, is no matter how unequivocal the admission or evidence seem, the accused is always entitled to a fair trial. This cannot be modified see Millar vs Dickinson [2001], an unfettered right to appeal to the Summary Appeal Court by definition cannot be unfettered if it is cable of being refused. The question of guilt is not relevant, it is similar to the established principle of freedom from pressure to enter a plea. This was examined recently by the Court Martial Appeal Court in R v Nightingale [2013], where Lord Judge held at paragraph 10 that, “the principle applies whether or not the court or counsel on either side think that the case against the defendant is a weak one or even if it is apparently unanswerable”.

I would like to try to establish how to apply a legal test when determining a case, where a failure to communicate consequences of a conviction would have an impact upon the lawfulness of the conviction. Mr Justice Wyn Williams concludes that, in the circumstances of my case, if there was a failure in process it does not impact upon the safety of the conviction because my RAF police interview and subsequent admissions are unequivocal. Unfortunately the judge cited no cases to reinforce this position and I do not agree. The very fact the Officer Commanding described the case as "a bit of a stitch up" somewhat undermines the position that the conviction is safe, and I will attempt to form an argument as to why my appeal should have been allowed.

The recent R vs Halliwell [2012] case has brought the topic of justice and a fair trial to the mainstream media. After listening to a radio phone chat show in 2012, the majority of public opinion was minded to ignore the PACE violations and instead focus on the unequivocal confession and the disclosure of the location of the remains of Becky Godden to have a conviction. Whist on the face of it, it is tempting to ignore inconvenient issues where due process has not been followed if it is unequivocal someone is guilty. Ignoring such issues and pressing ahead with a conviction gives rise to additional complexities.

In any given case, if due process had not followed and the defendant were to be completely unable to have a fair trial, but a conviction were to result regardless, purely on the basis of unequivocal guilt, a precedent would be set. There would be no reason for the Crown to follow due process when faced with a similar situation. The Crown could now effectively decide to ignore due process when it suited knowing that a conviction will still follow in certain cases. This situation gives rise to a quintessential slippery slope argument, namely what is the purpose of the law if it can be applied and ignored at times by the Crown? Which laws can the Crown ignore? Who is permitted to break the law and who is not? What if a case appears unequivocally clear that an individual is guilty, however there has been some form of corruption and the individual is denied a fair trial to dispute evidence? Very quickly we descend into a totalitarian state whereby any form of justice and law and order completely vanishes all because of setting a relatively minor precedent.

In my opinion the above slippery slope argument is exactly why Mrs Justice Cox was entirely correct in her judgment in R vs Halliwell in 2012. A clear message has been sent to any serving police officer that it you attempt to drive a horse and cart through the Police and Criminal Evidence Act in a similar fashion to Detective Superintendent Fulcher, the evidence will not be admissible and the case may collapse. Mrs Justice Cox effectively ruled that this message was more important and ruled the majority of the evidence required for a conviction inadmissible despite Halliwell's obvious unequivocal guilt. Utilising the logic of the judgement of Mr Justice Wyn Williams in the Halliwell case, the unequivocal confession and guilt of Halliwell would mean no injustice would have occurred had the evidence been used against him. Whist Mr Justice Wyn Williams position seems obvious and popular with public opinion, I cannot help think it would be incorrect and set a dangerous precedent.

Returning to my case, I cannot help thinking that Mr Justice Wyn Williams has served a huge injustice upon our Servicemen and women. The judgement has set a precedent that sets up a slippery slope. The Vice Judge Advocate General in his Judgement at the Summary Appeal Court has stated that "there is no requirement to inform the Serviceman when he is tried before his Commanding Officer or Subordinate Commander that a finding of guilt for a criminal offence will result in an entry on the Police National Computer."

This Judicial Review judgement reinforces the position of the VJAG, and furthermore creates an advantageous situation for securing convictions without the need for evidence to be challenged at a Court Martial. It becomes advantageous to the Service Prosecuting Authority if Servicemen do misunderstand their Summary Hearing charges, because a precedent has been set that it is of no consequence in cases perceived to be unequivocal. The judgement has given a subtle green light to deliberately mislead Servicemen into believing criminal charges to be purely disciplinary. Hypothetically, if the Service Legal teams assessed an individual to be unequivocally guilty and deliberately failed to follow due process and went ahead to mislead Servicemen in order to withhold an ECHR article 6 compliant trial, it is unlikely to ever return to court. In this hypothetical situation, most individuals would never even know that they had a Criminal Record, of those that did discover an entry on the PNC after they undertook a CRB check many would simply accept the charges. Very few would go through the lengthy process of an application for leave to appeal out of time, and if they did because of this judgement they probably be refused.

In the Halliwell case, after considerable effort and delay the Crown managed to secure a conviction for the murder of Becky Godden without the need to refer to Halliwell's inadmissible confession. Justice has been done. The overriding objective of justice is to ensure a fair trial to convict the guilty and acquit the innocent. There would be no justice in a society without a fair trial and equality justice has been denied if it fails to convict the guilty and acquit the innocent. Both elements are essential ingredients. Given the initial problems in the Halliwell case, it is of course a entirely the right conclusion that a conviction was achieved at a fair trial without utilising the evidence obtained outside due process. This should always be the overriding objective of justice. In my case if the initial Summary Hearing conviction was quashed, it would be entirely possible to have a fair trial and reach the correct conclusion based upon the evidence. This would also provide an opportunity to examine if my claims that my RAF police Interview tapes have or have not been altered, justice could be done but a vital ingredient is missing and I feel I have been denied my day in court.

I have to face the position that because of my lack of legal knowledge, because a completely independent Judge has examined my case and found against me, that there is an extremely strong likelihood that I am indeed wrong as much as I may hate to admit it. This does trouble me and I have some questions:-

Why are Summary Hearings only permitted in the Armed Forces? If they are an acceptable cheaper alternative are there any other examples where unequivocally guilty individuals could be charged and sentenced summarily without a trial? When individuals with extremist views commit atrocities and use their trial as a platform to promote their warped views, it is of course to promote their ideology, but this is disturbing for their victims. Would it be legal to prevent the unequivocally guilty murderers who are caught in the act such as [MichaelAdebolajo and [MichaelAdebowale appearing in court?

What happens if evidence seems to point to unequivocal guilt however the evidence is somehow tainted? A fair trial is an obvious safeguard as it provides a platform to cross examine evidence and form a defence. (In my case I genuinely believe the evidence to be tainted with Police interview tapes altered.) How can a judgment on unequivocal guilt be made by only examining evidence on face value? Is there not a danger of injustice?
Comments are invited from knowledgeable readers in the UK (or elsewhere).


  1. To misqote CLemenceau, "Summary Justice is to justice what Military Music is to Music". The summary system is a manifest breach of article 6 in those cases where it deals with a criminal offence or where its punishment equates to theat of a criminal punishment (Engel-v-Netherlands). Tom was charged with the offence of criminal damage. Criminal Damage is an offence known to the criminal law and is set out in the Criminal Damage Act 1971. It is, therefore, a criminal offence and should have been tried by court martial.

    There is an alternative in the Service Justice System where the damage is to Service property, which is to charge the offence under s.24 of the AFA 2006, which is Damage to or loss of public or service property (defined in s. 26). However, as the similarity is close to that of criminal damage offence, it may also be recordable.

    In Tom's case, the incident looks to have been a relatively minor one and it is understandable that all involved - both Tom and his disciplining officer - thought that summary dealing would be the most suitable way of resolving the matter. What nobody seems to have realised - because of the absence of legal advice and representation to the defendant at the summary hearing, was that the offence was recordable by the police. Had Tom known this it may have significantly influenced his choice of venue.

    In the event, the matter came before the High Court by way of Judicial Review.

    The judge concluded (§16) "This case is a comparatively simple case of a man who knew full well that he had committed a minor offence and admitted it at the first opportunity". He focused on the admission and does not appear to address Tom's concern which was not that he misunderstood the offence, but that the consequences of summary dealing on his later career had not been explained to him and, in the light of the slight doubt about the damage ("a bit of a stitch up" because the prosecuting authorities were (putting it crudely) trying to get the cost of a new door from the claimant when it had already been damaged), the evidence could have been properly tested at trial.

    I have made some initial submissions to the Defence Select Committee on the need to reform the summary system and make it ECHR compliant. This is even more important as we see the ECHR compliant court martial system slip slowly away from the three services into the hands of the civilian prosecution authority (CPS). It therefore seems to me that everyone who feels that the summary system is unjust should send their submissions in to the Committee, with the reasons why they feel the way they do. AMCA may wish to support this.

    We appear to treat our prisoners better than our servicemen (Ezeh and Connors -v-UK).

    Fiat justitia.

  2. I think the email on page 31 hits the nail on the head. I did not believe a Summary Hearing to be a proper court.

    Since Summary Hearings are predominantly utilised for hearing Service Disciplinary offences. I had absolutely no idea whatsoever you could march in front of your Squadrons Officer Commanding, salute, have a series of semi-scripted conversations and march out with a Criminal Record.

    I was certainly not alone in believing this position, pretty much every single serviceman and Officer I have spoken to have expressed their similar lack of knowledge. I find it quite extraordinary an individual can be charged and sentenced summarily of a Criminal Offence without he or his Commanding Officer understanding the consequences. But this is hardly surprising if there is no legal representation whatsoever permitted at the hearing!

    The Summary Hearing is not ECHR article 6 compliant, but unfettered access to the Summary Appeal court renders the overall process legal. Quite clearly access to the Summary Appeal Court is capable of being restricted and by definition cannot be unfettered. I hope to appeal to the ECtHR, to force change but in the meantime I hope meaningful change is implemented before.

    The lines between criminal and disciplinary have become blurred and it is my belief utilising a process designed for disciplinary offences to hear criminal offences has certainly created this problem. Baliewai's case highlighted this issue and it was discussed at the highest levels at Service Justice Board meetings. . Baliewai's Commanding Officer was also unaware his findings would result in a Criminal Record. Many hoped Baliewai's case would lead to major changes being implemented, however a flawed process is still in place.

    Another point that I think should be considered is that there is another option available for civilian police forces investigating minor criminal offences that is not available to our Military police forces. For a minor first time offence such as Criminal Damage, it is more likely to be disposed of via a Police Caution than via the courts, however this option is excluded and may be disproportionately criminalising Servicemen and women as a result.


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