The UK Court Martial Appeal Court

Royal Courts of Justice
The Strand, London

At the last Townhall on 1 June, I was asked how many cases had been appealed to the UK Court Martial Appeal Court (CMAC) over the past year. On checking the Aspals records, there were just 4 appeals last year and none so far this year. None of the appeals, incidentally, related to sexual crime. For information, the CMAC comprises the same judges who sit in the civilian appeal court. It can – and does – sometimes include the Lord Chief Justice:

Ashworth, R-v-: [2019]
A offered guilty pleas to using racially aggravated threatening, abusive or insulting words or behaviour to a black Kenyan uniformed Army patrol JNCO. Mitigation was based on the financial consequences for the applicant and his family of a reduction to the ranks. He was sentenced to 90 days' detention and ordered to be reduced to the ranks. He appealed his sentence alleging the severe financial consequences of a reduction to the ranks and produced figures on the premise that it would realistically take about six years before the applicant could hope to recover his former rank, with the overall financial loss during that period in the order of at least £37,000. He also argued that his sentence should have been suspended. The CMAC held that there was not any ground on which the sentence can be challenged. "We remind ourselves that the Court Martial is a specialist tribunal and particular respect must be given to its judgments as to the significance of the military context of an offence and as to the implications for the service, as well as for the individual offender, of imposing particular sentences."

R-v- Cheeseman: [2019]
On 24 March 2017 the appellant stabbed and injured a fellow serviceman, Lance Corporal L, in the room occupied by the appellant on base in Dhekelia, Cyprus. He was prosecuted for attempted murder. He denied any intention to kill but, more widely, his defence was one of self-defence, colloquially described as the "householder defence", introduced by way of amendment into section 76 of the Criminal Justice and Immigration Act 2008 by the Crime and Courts Act 2013. The judge erroneously ruled that the householder defence applied only to cases where the person injured as a result of the use of self-defence was an intruder, rather than somebody who had entered the premises lawfully but thereafter become a trespasser. Moreover, he ruled that there was no evidence that the defendant believed that Lance Corporal L was a trespasser. He was acquitted of attempted murder but convicted of wounding with intent to do grievous bodily harm. He appealed against conviction. On appeal, the CMAC (which included the Lord Chief Justice) held that the Board clearly considered that the appellant had been significantly provoked, a proposition with which the CMAC entirely agreed, but it rejected self-defence completely. The conviction was safe, despite the error of law that the judge misinterpreted the statutory provision and therefore did not leave the householder defence to the Board, and consequent misdirection which CMAC identified. It was observed that "[t]he sentencing remarks at a Court Martial are delivered by the Judge Advocate. Whilst the Judge Advocate does not take part in the deliberation of the Board in determining guilt or innocence, the Board and the Judge Advocate determine sentence. That enables the Judge Advocate concerned to pronounce sentence in the sure knowledge of the underlying findings of fact made by the Board."

Gunn -v- Service Prosecuting Authority: [2019]
On 27 February 2017, at a Court Martial held in the Military Court Centre Bulford, the Appellant was convicted of committing a criminal offence contrary to s.42 of the Armed Forces Act 2006, namely Battery, contrary to s.39 of the Criminal Justice Act 1988. He complained that, although he served in the RAF yet he was tried by an Army Board. His appeal was dismissed. The constitution of the Court Martial did not disclose a breach of the relevant Queens Regulation, which stated,
"A Service defendant will ordinarily be tried by lay members of wholly his own service. [2] However, where a defendant is tried with a co-defendant from a different Service, the lay membership of the court will be a mixture of Service personnel from different Services. [3] Each defendant will always have at least one lay member of his own Service on the board….”
Queens Regulations are made under Royal Prerogative powers and "now comprise a species of delegated legislation". In other words, they have the force of law. "We begin with the status of the QR and have no doubt that they are a species of delegated or subordinate legislation".
The CMAC emphasised, for the avoidance of doubt, this conclusion does not and is not intended to undermine the usual practice of a Service defendant being tried by lay members drawn from his own Service. But that which is desirable and ordinarily the case is not necessarily mandatory - and was not mandatory here.
It is interesting that the CMAC used the phrase "that which is desirable". There is a clear single Service interest in personnel being tried by members of their own Service, who understand the specific ethos and context. The CMAC has recognised this for many years, since the unreported decision in McKendry in 2001.

H and J, Regina -v- : [2019]
This case concerned the proper interpretation of Rule 26 of the AF(CM)R 2009:

"Circumstances not provided for.
26. Subject to any other enactment (including any other provision of these Rules), the judge advocate shall ensure that proceedings are conducted— (a) in such a way as appears to him most closely to resemble the way in which comparable proceedings of the Crown Court would be conducted in comparable circumstances; and (b) if he is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstances, in such a way as appears to him to be in the interests of justice."

The defendants were charged with conspiracy to fraudulently evade duty payable on goods contrary to section 1 of the Criminal Law Act 1977. They applied before arraignment for the charges to be dismissed on the grounds that the Crown's case was insufficient for the matter to proceed. At an initial hearing the Judge Advocate General ruled that there was no power within the Service Justice system for a case to be dismissed before arraignment.
The Defendants appealed successfully to the CMAC, which held that the saving represented by rule AF(CM) R, r26(b) applied as the interests of justice required the judge advocate to apply a comparable process to that in the Crown Court. That right had existed prior to the coming into force of the Armed Forces Act 2006 and no reason could be discerned for concluding that the right had been removed by that Act.

Other Caselaw
In addition to these appeals, there was also an application for judicial review by a Civilian subject to service jurisdiction, living in Germany, over sexual offences, some involving children, tried by court martial, and the Solicitor General's fiat, disclosure of Attorney General's consent. In Shuttlewood and the MOD, a civilian subject to Service Law was tried for sexual offences committed in Germany in 2003/2004 and 2009. Due to the time interval, the prosecution was by way of leave signed by the Solicitor General, on behalf of the Attorney General. The Divisional Court of the Queen’s Bench HELD: (1) Section 1(1) of the Law Officers Act provides that any function of the Attorney General may be exercised by the Solicitor General. Section 326 of the Armed Forces Act simply provides that there is no other requirement for the Attorney General's consent. Interestingly, the court held that there is no requirement that the decision to prosecute outside the time limits be communicated to a defendant in court martial proceedings. (2) There was no requirement that the Solicitor General give reasons for his fiat. Application refused.