The very model of a modern sentence? The sentence of Maj Gen Welch (Rtd)

This article was initially published on the Cornwall Street Chambers website. It is primarily intended to address a civilian/non-specialist audience but it may be of some interest to the readers of GMJR. 

On 25^th March 2021 the Court Martial sitting at Bulford Military Court Centre convicted Major General Nick Welch OBE (Rtd), late Assistant Chief of the General Staff, of fraudulently claiming £49 212.00 in Continuity of Education Allowance (“CEA”). He was the most senior British officer to be tried by Court Martial since 1815 when Lt Gen Sir John Murray was convicted of abandoning his guns without due cause, during the failed Siege ofTarragona in 1813. Fortunately, for the reputation of the British Army that reverse was soon eclipsed by the then Marquess of Wellington’s stunning victory at Vittoria two days later. Sadly, no such laurels attached to the British Army in late March 2021.

THE FRAUD

Maj Gen Welch was charged in relation to his claim for CEA, a scheme whereby service personnel required to serve away from home can educate their children at independent Boarding Schools. The purpose is to aid retention by ensuring that children’s schooling is not constantly disrupted by the requirements of the service. The full conditions of the scheme can be found in JSP752. However, in a nutshell, whilst serving in London Maj Gen Welch was required to make his Service Family Accommodation (a family house in Putney) his main home i.e. where he and his wife lived and where his children returned in the school holidays. His wife was not permitted to be absent for more than 90 days per year. In return, 90% of the school fees for his two children would be funded by the MoD.

The effect of the scheme is that if the soldier’s partner does not want to “follow the drum” because it might mean giving up a career, or simply because they do not wish to live where the Army sends their partner, then their child may be forced to change schools. It is a somewhat archaic rule that has led to the end of more than one marriage and the career of more than one officer as they try to protect their child and placate their partner by hiding the truth from the Army. As was said during the trial, there is a certain amount of flexibility built into the system but only if you inform the chain of command and make a case for funding to continue. However, there is the ever-present risk that funding may be withdrawn if your partner is away for more than 90 days.

Unfortunately for Maj Gen Welch, the Board found his wife had been absent for more than 90 days. Furthermore, it found he had known full well that he was in breach of the regulations but had dishonestly still claimed the allowance.

THE SENTENCE

On 26^th March 2021 the Judge Advocate General, HHJ Alan Large (“JAG”), sitting with the Board who had convicted him, sentenced Maj General Welch to 21 months imprisonment and to be dismissed from the Army. He was ordered to pay back the full sum of £49 212.00 within three months. Mr Welch was conveyed to the Military Corrective Training Centre at Colchester that day and then, a few days later, to Her Majesty’s Prison Colchester to begin his sentence. He will serve half the sentence in custody (less up to 135 days which can be spent on Home Detention Curfew) and twelve months on licence.

The full sentencing remarks are available on request from the Military Court Service and deserve reading in full.

COMMENTARY

To those unfamiliar with the Service Justice System (“SJS”) the sentence will appear a harsh one. A man of positive good character, with steady employment who was sentenced (even after trial) following a delay of four years for a non-violent offence would ordinarily receive a suspended sentence if the sentence was capable of suspension. During the Pandemic, when imprisonment is much harder, a suspended sentence is more likely. The Court Martial is required to have regard to the Definitive Guideline on the Imposition of Community andCustodial Sentences which invites them to consider the following:

The sentencing remarks confirm the Board concluded that appropriate punishment could only be achieved by immediate imprisonment. However, they made no reference to the other features beyond strong personal mitigation. That of itself is surprising because

even if a board takes the view that appropriate punishment would only be achievable by immediate custody, they still have a discretion to suspend if there are sufficient factors against such a course; it is a balancing exercise. Unfortunately it is not clear if that balancing exercise was conducted. Certainly, no consideration appears to have been given to the inevitable loss of employment caused by imprisonment.

It appears that there was no Pre-Sentence Report which would have provided independent advice on how to assess those criteria. That is another surprising feature of this sentencing exercise. Before imposing a sentence of imprisonment or dismissal the Court is required by s.256 of the Armed ForcesAct 2006 (“AFA06”), to obtain a pre-sentence report (“PSR”) unless it is of the opinion that it is unnecessary. That sensible caveat to the rule means there is no need to obtain a report where the only possible outcome is imprisonment. In the Crown Court that sensible caveat is often stretched by experienced and pragmatic judges who, having heard a trial have already concluded that they will have to send the defendant to prison. JAG is certainly an experienced and pragmatic judge, and a humane sentencer, so it is readily understandable that he may have concluded that he did not need a PSR, particularly when assisted by Her Majesty’s counsel. However, the Board was made up of lay members with an equal voice to JAG. Whatever, their professional skills they were not experienced sentencers and should really have been assisted by a PSR, as Parliament intended. By not ordering a report Maj Gen Welch was perhaps deprived of an opportunity.

Why then did the Board take such an uncompromising attitude? Unlike the Criminal Justice System in the SJS a purpose of sentencing is the maintenance of discipline, the foundation of Operational Effectiveness. Dishonesty is particularly corrosive to discipline as, when committed against the Crown or a comrade, it erodes trust. Therefore, military justice has long taken a particularly dim view of such offending.[1] Good discipline requires commanders to be examples. Maj Gen Welch was the most senior officer convicted in modern times, and as JAG made clear the higher the rank, the greater the aggravation. These two features may justify the imposition of a harsher sentence than the Crown Court would impose. Although arguably a suspended sentence with a lengthy curfew, unpaid work and financial penalty would have met the occasion.

One reason such a sentence might have met the occasion is that Maj Gen Welch was also dismissed from Her Majesty’s Service. That additional penalty was inevitable in a case such as this, as The JAG’s Guidance on Sentencing in the Court Martial and the Court Martial Appeal Court makes clear. However, it is a separate penalty requiring separate consideration and if it must be imposed, consideration must be given to totality. Unfortunately, the Sentencing Remarks do not reveal any consideration of the impact of the sentence. Normally dismissal means the loss of employment, accommodation and the delay in pension rights. Having retired Maj Gen Welch would not suffer any of those consequences and that may be why little consideration was given to the impact of the sentence. However, that is a superficial analysis, the reality is that the rank of major general, even on the retired list, is a valuable commercial asset commercial. That is perhaps unpalatable, but it is the reality. This sentence has deprived Maj Gen Welch of that asset and the Court was required to consider if a reduction in the custodial term was required to address totality. The impact of dismissal has been held to sufficient to reduce a sentence of imprisonment to one of detention.

Another reason a suspended sentence might have met the occasion was the level of delay before trial; four years. Unfortunately, in the SJS delay before charge is endemic, despite strenuous efforts of the judiciary as part of the Better Case Management (Court Martial)policy, the Service Police insist on repeatedly interviewing suspects and obtaining every continuity statement before referring the case. However, four years is exceptional even within the SJS. Delay impacts on the defendant who has the matter hanging over them, sometimes even after they leave the service and impacts on Operational Effectiveness. The Board reduced the sentence by 9 months or 30% to reflect that. However, the Court of Appeal has previously reduced a sentence by 25% to mark 11 months delay, not withstanding the appellant pleaded not guilty. Whilst the Board could not follow the arithmetic exactly, for obvious reasons, a reduction of 50% or a suspension is arguably called for, if only pour encourager les gendarmes.

Maj Gen Welch’s sentence was unquestionably a harsh sentence, especially during the pandemic, although the Board effectively reduced the length of the sentence to reflect that it would be harder to serve than it would have been if imposed before the pandemic. However, the requirements of the service, particularly the need to maintain discipline, required a harsh sentence. As the sentencing remarks implicitly acknowledge, Maj Gen Welch knew that full well. The question is though, as a result of the issues raised above, was it an excessive sentence? Certainly, it can be argued that the Board could have taken a different course. We may yet find out, Mr Welch has until 23^rd April 2021 to lodge an appeal against sentence with the Court Martial Appeal Court.

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[1] The Articles of War specified a sentence called the Gauntlet. The prisoner would be marched slowly past his comrades who (as victims of the theft) would lash him with lengths of rope.