Courts-Martial Decided Cases - B
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Reported Cases - B

Name Reference 
B, AJ,  R  -v-
Sexual Assault/recent complaint/Wrongful admission of evidence/reduction in rank/Financial Consequences of sentence/Prosecution Costs
[2009] EWCA Crim 1634
Courts Martial Appeal Court
Staff Sergeant B was convicted at a District Court Martial held at the Military Court Centre Colchester (Judge Advocate Seymour) of sexually assaulting Lance Corporal P, a female driver, and was sentenced to be reduced to the ranks. The first ground of appeal was that the evidence of recent complaint from two witnesses was so inconsistent with the evidence as given by the complainant at trial, it destroyed the complainant's credibility totally. The other ground was that the complainant had allegedly told another witness that the whole thing, meaning the prosecution of her complaint, had been blown out of all proportion. This was denied by the complainant. HELD: appeal against conviction denied. In relation to sentence, the financial impact of loss of salary was argued. This appeal, too, was refused, as was the prosecution request for costs.
Coram: Lady Justice Hallett DBE; Mr Justice Maddison; Mr Justice Hickinbottom
Applicant: Mr D Clark
Respondent: Mr D J Richards
B (Christopher), R-v-
Sentencing
18 Feb 2003
CMAC
Appeal by Sgt Christopher B against sentence of 2 years imprisonment, reduction to the rank of private and dismissal with disgrace from the army. Found guilty of 1 charge of indecent assault on a male. HELD:  sentence was "manifestly excessive" for a soldier of previous good character. Sentence of one year substituted. Coram: Auld LJ, Fulford J, Zucker HHJ
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B (GG), R-v-
Sex Offence/Conviction/Sentence/Detention/Notification Period
[2005] EWCA Crim 2400
CMAC
Application for leave to appeal against conviction and sentence for indecent assault on a male. DCM sentenced him to be reduced to the rank of sapper and to undergo detention for 56 days. Placed on the Sex Offenders Register and to comply with notification requirements for five years. Registrar drew attention to section 82 of the Sexual Offences Act 2003 in which a person sentenced to imprisonment for six months or less is subject to the notification requirement for a period of seven years.  HELD: (1) Putting a hand down the complainant's boxer shorts, as had been alleged, was plainly action which was capable of being indecent. Application for leave to appeal against conviction dismissed. (2) The sentence could be seen as being severe, but cannot be characterised as manifestly excessive. (3) In cases where service detention is the form of disposal adopted by the court martial, the person is a person of any other description within the meaning of section 82 and the notification period therefore is five years beginning with the relevant date. Coram: Keene, LJ, Newman and Moses, JJ
Appellant: unrepresented Respondent: James Mason, Esq
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B:   R (B) -v- Director of Public Prosecutions (Equality and Human Rights Commission intervening)
Judicial Review/Decision not to prosecute/violation of victim's Convention rights
[2009] EWHC 106 (Admin) (indexed summary),
BAILII Report;
QBD: 27 January 2009
The decision to abandon a prosecution because of the victim's mental instability involved a misapplication of the Code for Crown Prosecutors, was irrational and was a violation of the victim's rights under art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Coram: Toulson LJ, Forbes J;
Claimant: Paul Bowen and Alison Macdonald (Bindman & Partners) ;
Defendant:David Perry QC and Clair Dobbin (Treasury Solicitor). The interested party did not appear and was not represented.
B: R -v-"B"
Sentencing
GCM, Aldershot
24 Jun 03
Guilty plea to 5 specimen counts alleging gross indecency with a child, buggery and indecent assault covering systematic sexual abuse of a step son over a 13 year period, commencing when the victim was 6 years old. Accused since left the Army. He voluntarily gave himself up to the civil police and made a frank confession. Consent of the Attorney General obtained to prosecute. Low risk of re-offending. Court had no power to make any supervisional order but, notwithstanding, felt that the offences were so serious that only a custodial sentence was appropriate. Sentence: 6 years imprisonment.
Coram: Judge Advocate Bayliss
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BA,  R  -v-
Terminating Ruling/competence, compellability/spouse/criminal damage/specified offence
[2012] EWCA Crim 1529
Court of Appeal
Appeal from a Crown Court terminating ruling. The case concerned an offence of criminal damage, charged under s.2(a) of the Criminal Damage Act 1971, namely, threatening to destroy or damage property belonging to another or a third person. At trial the wife would not give evidence voluntarily. The judge ruled she was not compellable. HELD:  Looking at the policy, language and practical considerations in a broad and purposive way, the court considered that Parliament decided to strike the balance by reference to the nature of the offence and not by reference to the factual circumstances surrounding the offence. The division in s.2 makes clear that the offence under s.2(a) is an offence directed at property where it cannot be said in such cases that the offence gives rise to the real possibility of an assault or injury or threat of injury. The Recorder was therefore right to rule that the evidence of the wife was not compellable.
Coram: President Of The Queen's Bench Division, Mr Justice Collins, and Mr Justice Singh
Applicants: G Gelbart (instructed by Crown Prosecution Service)   Respondent:  R Cohen for the Respondent
B (AS), R-v-,  R  -v-
inciting a child to engage in sexual activity/causing a child to watch a sexual act/dismissal
B (AS), [2010]
Courts Martial Appeal Court
Pleaded guilty to three charges of inciting a child to engage in sexual activity and one charge of causing a child to watch a sexual act. On 28th September 2009 at Bulford he was sentenced to 18 months' detention and dismissal from Her Majesty's Service. He was also made subject to a Sexual Offences Prevention Order and disqualified from working with children. Appeal against the order of dismissal with leave of the single judge. He sent text messages to 14 year old girl. The texts from the appellant became more and more depraved. A second 14 year old complainant was involved, who eventually contacted the police. In interview, B refused to answer questions but produced a prepared statement claiming he believed the girls were 16. Pre-sentence and psychiatric reports were produced, along with character references. HELD:  There is a sound basis for concluding that, given the particular features of military service referred to elsewhere in the Guidance, "employability" may be a relevant consideration when a Courts Martial is considering the question of dismissal, even if not the only or primary factor. A sentence of detention for offences as serious as these committed against young girls was merciful. Appeal dismissed.
Coram: Lady Justice Hallett DBE; Mr Justice Hamblen; Mr Justice Hickinbottom
Applicant: Mr M Scott
Respondent: Lieutenant Colonel G Coombes
Baines-v-Army Prosecuting Authority
Summary Dealing/Case Stated/Human Rights/Art.6/Fair Hearing
[2005] EWHC 1399 (Admin)
QBD
Allegation that summary dealing had been in breach of the appellant's rights under Art. 6 ECHR on the grounds that the commanding officer was not an independent tribunal; the appellant's choice to be tried by the commanding officer was not a free and unambiguous choice; and the appellant had not had the right to legal advice and representation at the hearing. Strong reliance was placed on the decision of the European Court of Human Rights in Thompson v UK (2005) 40 EHRR 11. Case stated by Summary Appeal Court. HELD:  An accused soldier can be tried de novo by a court-martial or by the SAC and he has a free and unrestrained choice to elect the former rather than summary trial and the latter if a finding is made against him on a summary dealing. It follows that an accused soldier who is dealt with summarily for an offence under Part II of the 1955 Act does enjoy the rights conferred by Art 6. Accordingly, the summary dealing conducted by the CO did not breach the appellant's rights under Art 6 (1) and (3). As a matter of general principle, a person can waive the Art 6 (1) and (3) rights to be tried by an independent and impartial tribunal and to legal assistance if he makes a voluntary, informed and unequivocal election not to claim these rights or to raise no objection to the lack of independence and impartiality of the tribunal and the lack of legal assistance.
Coram: Rose LJ, Field J
Appellant: Fiona Edington  Respondent: Philip Havers QC
Acknowledgment: Lewis Cherry, solicitor for the appellant.
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R-v-Ball
R -v-Rugg
Assault/ABH/Sentencing/Detention/Remission
[1998] EWCA Crim 473 (12th February, 1998)
CMAC
A remarkable decision which determined that the substitution of an equal term of detention for a term of imprisonment under a court martial was in effect a more severe term than the original and concluded that however benign a term of detention was the essential element was a loss of liberty which was potentially greater under a term of detention as the remission period is less.
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Bankovic and others -v-Belgium and other countries
ECHR/Jurisdiction/Scope of application of the Convention
Application no. 52207/99
Grand Chamber
The Applicants were all citizens of the Federal Republic of Yugoslavia ("FRY"). On 30 January 1999, and following a decision of its North Atlantic Council ("NAC"), NATO announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. During April 1999 bombing raids took place by NATO aircraft, during which the relatives of the Applicants were killed, thereby breaching their Article 2 right to life. HELD:  The Applicants and their deceased relatives did not come within the "jurisdiction" of the respondent States within the meaning of Article 1 of the Convention. The Court was not persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent States. Accordingly, it was not satisfied that the Applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent States on account of the extra-territorial act in question.

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Barlow, R -v- Barlow
Wounding/alternative ABH/Abuse of Process
[1998] EWCA Crim 1173
(2nd April, 1998)
On 23 August 1997, at a General Court Martial held at Long Kesh, the applicant was found guilty of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. He had been charged with three offences arising out of the same incident. The first of those was a wounding offence under section 18 of the Offences Against the Person Act, on which at half time the Judge Advocate ruled that there was insufficient evidence. The third charge was an alternative of assault occasioning actual bodily harm. No verdict was eventually returned on that charge. He had earlier pleaded guilty to two offences of common assault. At the start of the hearing counsel for the applicant submitted that the trial by General Court Martial was an abuse of process and that the proceedings should be stayed. He indicated that he was prepared to plead guilty to the charge of assault occasioning actual bodily harm on the basis of recklessness. But the prosecution were not willing to accept a plea on that basis. Because none of the witnesses were present a Newton hearing was impossible and the Judge Advocate dissolved the court. Before a new trial was convened the prosecuting authority prepared a fresh charge sheet which contained the five charges. At the end of a lengthy hearing the Judge Advocate ruled that there was no substance to the argument that to continue with the trial amounted to an abuse of process. The accused was never told that he would not be prosecuted as Dean was in the Croydon Justices ' case. The second ground advanced by the applicant is that the Judge Advocate erred in permitting the Crown to adduce evidence of the two earlier incidents and the guilty pleas to common assault. Alternatively, it is said that the admission of that evidence would have had such an adverse effect on the fairness of the proceedings that it ought to have been ruled inadmissible under section 78 of the Police and Criminal Evidence Act. The Judge Advocate was entitled to exercise his discretion as he did. Counsel for the applicant submitted that there was insufficient evidence for a court properly directed to convict. The Judge Advocate was right to let the case proceed. An allegation of bias in respect of one member of the bard of officers was also rejected. Submissions that there were 5 flaws in the summing up were also rejected.
Coram:  Lord Bingham, CJ, Mr Justice Brian Smedley And Mr Justice Thomas;
Applicant: Mr Mark Barlow
Begley: R -v- Begley
Sentencing/Battery/recruits
[2010] EWCA Crim 1758,
2nd July 2010
Renewed application by applicant convicted at a Court-Martial at Bulford of two charges of battery on 9th December 2009, before JA McGrigor and a Tribunal. He was sentenced to being reduced from the rank of Bombardier to Lance Bombardier.  HELD:  Application refused. The fact that he was reduced in rank even though that has obviously severe financial consequences to him in the region about £6,000 a year, and a significant impact on his promotion prospects, is actually a less serious consequence than would have happened in civilian life where he would not only have lost his job, but no doubt been subject to some form of community order in the courts.
Coram: Lord Justice Thomas, Mrs Justice Dobbs DBE, Mrs Justice Sharp DBE;
Applicant : Mr M Tregilgas-Davey, counsel
Respondent: Brigadier PD McEvoy OBE
Behrami and Behrami -v- France
Saramati -v- France, Germany And Norway
UN Ops/applicability of ECHR/Jurisdiction and responsibility of States
(2007) ECtHR
(Application Number 71412/01; 78166/01)
2 May 2007
The Behrami applicants were Kosovans of Albanian descent. One had been killed while playing with an unexploded NATO cluster bomb dropped during the bombing campaign. His brother was injured, suffering disfigurement and blindness. On 24 April 2001 Saramati was arrested by UNMIK police on suspicion of attempted murder and illegal possession of a weapon. Detention was authorised by an investigating judge. On 4 June he was released on appeal. He was re-arrested by UNMIK police on 13 July 2001. KFOR Legal Adviser advised that KFOR had the authority to detain under the UNSC Resolution 1244 of 10 June 1999. At his subsequent domestic trial he was convicted of attempted murder. On 9 October 2002 the Supreme Court of Kosovo quashed Mr Saramati's conviction and his case was sent for re-trial.
At the material times, UNSC Resolution 1244 of 10 June 1999 provided for the establishment of a security presence (KFOR) by "Member States and relevant international institutions," "under UN auspices," with "substantial NATO participation" but under "unified command and control." UNSC Resolution 1244 also decided on the deployment, under UN auspices, of an interim administration for Kosovo (UNMIK) and requested the Secretary General ("SG")to establish it and to appoint a Special Representative to control its implementation. UNMIK was to coordinate closely with KFOR.
HELD, in unanimously striking the Saramati application against Germany out of its list of cases and by a majority, declaring inadmissible the application of Behrami and Behrami and the remainder of the Saramati application against France and Norway:
  1. Article 103 of the UN Charter provides: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." (The ICJ) considers Article 103 to mean that the Charter obligations of UN member states prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the UN Charter or was only a regional arrangement.
  2. The issuing of detention orders fell within the security mandate of KFOR and that the supervision of de-mining fell within UNMIK's mandate.
  3. UNSC Resolution 1244 delegated to willing organisations and members states ... the power to establish an international security presence as well as its operational command. Troops in that force would operate therefore on the basis of UN delegated, and not direct, command. In addition, the Secretary-General was authorised to establish UNMIK.
  4. Chapter VII constituted the foundation for the above-described delegation of UNSC security powers,
  5. The UNSC did retain ultimate authority and control so that operational command only was delegated by UNSC Resolution 1244. This was borne out by the following factors.
    1. Chapter VII allowed the UNSC to delegate to "Member States and relevant international organisations."
    2. the relevant power was a delegable power
      • that delegation was prior and explicit in the Resolution itself
      • the Resolution put sufficiently defined limits on the delegation by fixing the mandate with adequate precision as it set out the objectives to be attained, the roles and responsibilities accorded as well as the means to be employed.
      • the leadership of the military presence was required by the Resolution to report to the UNSC so as to allow the UNSC to exercise its overall authority and control. The requirement that the U.N. Secretary-General present the KFOR report to the UNSC was an added safeguard since the Secretary-General is considered to represent the general interests of the UN.
      • UNSC Resolution 1244 gave rise to the following chain of command. The UNSC retained ultimate authority and control over the mission and it delegated to NATO the power to establish, as well as the operational command of, the international presence, KFOR. NATO fulfilled its command mission via a chain of command. Multinational brigades action was to be taken according to an operational plan devised by NATO and operated by COMKFOR in the name of KFOR.
      • The UNSC retained ultimate authority and control and effective command of the relevant operational matters was retained by NATO. KFOR exercised lawfully delegated Chapter VII powers of the UNSC so that the impugned action was, in principle, "attributable" to the UN.
      • In contrast to KFOR, UNMIK was a subsidiary organ of the UN. Accordingly, – the impugned inaction was, in principle, "attributable" to the UN in the same sense.
      • The Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the European Court of Human Rights. To do so would be to interfere with the fulfilment of the UN's key mission in this field. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself.
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Belgium-v-Senegal
Torture/crimes against humanity/International law/Extradition/Obligation to Prosecute or Extradite
[2012] ICJ Case No. 2012/24, 20 July 2012
On 19 February 2009, Belgium filed in the Registry of the Court an Application instituting proceedings against Senegal in respect of a dispute concerning "Senegal's compliance with its obligation to prosecute Mr. Hisséne Habrè, former President of the Republic of Chad, for acts including crimes of torture and crimes against humanity which are alleged against him as perpetrator, co-perpetrator or accomplice, or to extradite him to Belgium for the purposes of criminal proceedings". In its Application, Belgium based its claims on the United Nations Convention against Torture 1984 as well as on customary international law. HELD: the court had jurisdiction in relation to acts of torture etc and that unanimously, that the Republic of Senegal must, without further delay, submit the case of Mr. Hisséne Habrè to its competent authorities for the purpose of prosecution, if it does not extradite him.
Bell -v- United Kingdom (Appeal)
Summary Dealing/Article 6/Non-compliance/Invalid waiver of article 6
(Application no. 41534/98)
16 January 2007 
The offence at issue (using insubordinate language to a superior officer) was, in the Court's view, disciplinary in domestic law and in nature. However, the Engel criteria being alternative and not necessarily cumulative, the "criminal" nature of the relevant "offence" could, in principle, be determined solely on the basis of the nature and severity of the sanction. Deprivation of liberty was liable to be and was actually imposed on the applicant. The presumption was that the charge against him was "criminal". That presumption could be rebutted entirely exceptionally and only if his deprivation of liberty could not be considered "appreciably detrimental" given its nature, duration or manner of execution (the Ezeh and Connors judgment, at § 126).
Consent to Summary Dealing: A waiver of a right guaranteed by the Convention — in so far as it is permissible — must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver's importance. It is important to note that the court noted that the applicant was directly subordinate, and in close structural proximity, to his CO, a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court-martial. The applicant would also have been influenced by the fact that a summary procedure involved a maximum sentence of 28 days (and 60 days only if extended powers were granted) whereas trial by DCM could have in theory ... led to a sentence of up to two years' imprisonment. ... Moreover, the fact that the option was presented to him at all meant that his CO considered him to be guilty as charged and, further, that he warranted more than a minor punishment. The Court considered that, even supposing that the Article 6 rights in question could in principle have been be waived, the circumstances were such that there was no valid waiver by the applicant of his rights under that Article.
The Court recalled that, in the Thompson case, it concluded that the summary procedure presented even clearer structural independence and impartiality problems than those established in the Findlay case and, further, that those proceedings were, consequently, unfair.

HELD: The summary procedure before the CO violated the independence, impartiality and, consequently, fairness aspects of Article 6 § 1 and that the exclusion of legal representation from the applicant's summary trial also constituted a violation of Article 6 § 3(c) of the Convention.

Applicant:  Mr J. Mackenzie, Respondent Government:  Mr C.A. Whomersley and, subsequently, Mr J. Grainger  
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Bell-v-United Kingdom
Human Rights/Summary Dealing/article 6
[2005] Application no. 41534/98
ECtHR
Article 6 § 1 complaint that the summary hearing before commanding officer was unfair. He mainly argued:
The CO was not "independent or impartial" since he acted both as prosecutor and judge; b) the proceedings were not held in public; c) he was not allowed to comment on the strength of the case against him or to make a statement in mitigation of sentence; d) the tribunal was not "established by law"; e) no reasons were given for the CO's decision; and f) there was no form of appeal available to the applicant.
Under Article 6 § 3 he argued that: a) he had insufficient time to prepare his defence; b) absence of legal representation (Article 6 § 3(c)); and c) certain medical evidence was not obtained, one witness was intimidated and the other was interrupted in the course of his evidence without intercession by the CO (Article 6 § 3(d)).
HELD:   Article 6 does not compel Contracting States to set up courts of appeal. Hence, even assuming Article 6 applied, the applicant's complaint about the lack of an appeal must be rejected as incompatible ratione materiae, within the meaning of Article 35 § 3 of the Convention. However, The remaining complaints raised complex and serious issues under Articles 6 § 1 and 3(c) which require determination on the merits. The Court unanimously Declared admissible the applicant's complaints under Article 6 §§ 1 and 3 about the lack of independence and impartiality of his CO, about the proceedings being consequently unfair, about those proceedings not being held in public, about his CO not constituting a tribunal "established by law" and about the lack of legal representation.
Applicant: John Mackenzie; Respondent: C Whomersley & J Grainger
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Bici-v- MoD
Negligence/Combat Immunity
[2004] EWHC 786(QB)
7th April 2004
British soldiers in Pristina opened fire upon a car containing four Albanians, killing two and injuring the others. They claimed they acted in self defence as they believed they had been fired at. The soldiers fired 42 shots in total. One of the deceased was shot in the back. The uncontroverted evidence was that the car began to accelerate away from the soldiers as the firing was taking place, before it came to a halt at a distance of some metres from its position when the first gun was fired. The survivors who were the claimants claimed damages both in negligence and trespass.HELD
1.  As to self defence. The soldiers were not being threatened with being shot by Fahri Bici when they fired their guns, and there were no reasonable grounds for them to believe that they were.
2.   Were the soldiers reckless? The claimants have not shown that the soldiers were reckless in the manner alleged.
3.  The defence of combat immunity is not strictly a defence at all. The defendants have expressly disavowed any reliance upon this doctrine. It has not been contended that the acts of the soldiers were either authorised or ratified by the Crown.
The claimants succeed in establishing that the defendant is liable to them in negligence and also, in the case of Mohamet Bici, in trespass to the person. The amount of damages will have to be assessed at a separate hearing.
Coram: Elias, J
Defendants: Mr. Stephen Miller Q.C. and Mr David Evans;   Claimants: Mr. Paul Rose Q.C.
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Binyam Mohamed, The Queen on the application of -v-The Secretary of State for Foreign and Commonwealth Affairs
Terrorism/Security Services/Torture/Disclosure of Intelligence "owned" by another state
[2010] EWCA Civ 158
Court of Appeal
26 February 2010 [Indexed file]
See also:  [2009] EWHC 2549, of 16 October 2009 (Indexed file)
Wording from its earlier judgment, criticising MI5 over former Guantanamo Bay detainee Binyam Mohamed can be published "in the interests of open justice". Coram:  The Lord Chief Justice, The Master of the Rolls, President of the Queen's Bench Division;
Appellant: Jonathan Sumption QC, Pushpinder Saini QC and Karen Steyn (instructed by The Treasury Solicitor) for the Secretary of State for Foreign and Commonwealth Affairs;
Respondents: Gavin Millar QC and Guy Vassall-Adams (instructed by Jan Johannes) for Guardian News and Media Ltd, British Broadcasting Corporation, Times Newspapers Limited, Independent News and Media Ltd and The Press Association; Geoffrey Robertson QC and Alex Gask (instructed by Finers Stephens Innocent) for The New York Times Corporation, The Associated Press, the Washington Post, the LA Times and Index on Censorship. Michael Beloff QC (instructed by Liberty and JUSTICE)
   
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Binyam Mohamed, The Queen on the application of -v-The Secretary of State for Foreign and Commonwealth Affairs
Terrorism/Security Services/Torture/Disclosure of Intelligence "owned" by another state (control principle)
[2010] EWCA Civ 65
Court of Appeal
Times, 12 February 2010
Appeal by the the Foreign Secretary, against a decision of the Divisional Court to include seven short subparagraphs in the open version of a judgment ("the first judgment"), notwithstanding the fact that the Foreign Secretary had stated in more than one Public Interest Immunity Certificate that such publication would lead to a real risk of serious harm to the national security of the UK. The issue whether or not the redacted paragraphs should be published required the Court to address fundamental questions about the relationship between the executive and the judiciary in the context of national security in an age of terrorism and the interests of open justice in a democratic society. HELD: 1. The open justice principle is undiminished either by the possible exercise by the Intelligence and Security Committee of its responsibilities to inquire into possible wrongdoing by the intelligence services or by the responsibility of the Attorney General to authorise criminal proceedings against any member of the services who may have committed a criminal offence.
2.  In this jurisdiction the control principle is not a principle of law: it is an apt and convenient description of the understanding on which intelligence is shared confidentially between allies. The executive is responsible for national security and public protection and safety from terrorism. The judiciary defers to it on these issues, unless it is acting unlawfully, or in the context of litigation, the court concludes that the claim by the executive for PII is not justified. It is not a decision to be taken lightly. The confidentiality principle is subject to the clear limitation that the government and the intelligence services can never provide the country providing intelligence with an unconditional guarantee that the confidentiality principle will never be set aside by the courts where it is in the interests of justice and appropriate to do so. In the light of a recent US District Court decision (Farhi Saeed Bin Mohammed v Barack Obama (Civil Action No 05-1347 (GK)), it was questioned whether there is now any real issue at all. Judge Kessler's Memorandum Opinion in that case was given in connection with the petition of a Guantanamo Bay detainee, Farhi Saeed Bin Mohammed ("the Petitioner"), for habeas corpus, which had been filed in July 2005On 22nd September 2008, the US court ordered the US Government to supply the 42 documents to Mr Mohamed's lawyers, and the most serious charge against him was dropped on 6th October. Judge Kessler not only set out Mr Mohamed's evidence as to the mistreatment to which he had been subjected, but she characterised it as "torture", and, importantly for present purposes, she said that it was true. Lord Neuberger MR said, "Until receipt of Judge Kessler's Opinion, I had, albeit with severe misgivings, reached the conclusion that the decision reached by the Divisional Court in the fifth judgment should be reversed. This was because (a) the court's reasoning did not persuade me that it was justifiable effectively simply to dismiss the Foreign Secretary's opinion, (b) while publication of the whole of the first judgment was very important as a matter of general principle, the court had rather overestimated the importance of publishing the redacted paragraphs, and (c) the balancing exercise favoured excising the redacted paragraphs, even though there were real reasons for scepticism about the Foreign Secretary's view." In the light of that US judgment, the whole basis for the Foreign Secretary's case for redaction fell away.
Coram:  The Lord Chief Justice, The Master of the Rolls, President of the Queen's Bench Division;
Appellant: Jonathan Sumption QC, Pushpinder Saini QC and Karen Steyn (instructed by The Treasury Solicitor) for the Secretary of State for Foreign and Commonwealth Affairs;
Respondents: Gavin Millar QC and Guy Vassall-Adams (instructed by Jan Johannes) for Guardian News and Media Ltd, British Broadcasting Corporation, Times Newspapers Limited, Independent News and Media Ltd and The Press Association; Geoffrey Robertson QC and Alex Gask (instructed by Finers Stephens Innocent) for The New York Times Corporation, The Associated Press, the Washington Post, the LA Times and Index on Censorship. Michael Beloff QC (instructed by Liberty and JUSTICE)
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Binyam Mohamed, The Queen of the Application of -v- Secretary of State for Foreign and Commonwealth Affairs
Torture/PII/Disclosure/Intelligence Cooperation
[2009] EWHC 2549 (Admin)
High CourtJudgment No 5,
16 Oct 2009
Binyam Mohamed alleged that MI5 was complicit in his torture by US intelligence operators. He sought the disclosure of documents in respect of which a PII certificate had been issued. The court had been informed at an earlier hearing that the disclosure of those unredacted documents would damage the intelligence sharing relationship between US and UK. The court was then requested to reconsider the decision on the basis that it had been misled or there had been a misunderstanding about that matter. Further evidence was served and the SoS served a further PII certificate of his concern there would be a real risk of serious harm to the security of the UK and its relations with the US. The court accepted that "There can be no doubt that there is a general principle or convention that intelligence information received by one state from another will not be released into the public domain or otherwise used without the consent of the state supplying it." (§15). However, it went on to hold that this was not a rule of international customary law and that court ordered disclosure would not normally have adverse consequences to the national security of the UK. There was a detailed analysis of the chronology relating to the matter of disclosure. On the basis of the indication by the US of the consequences of disclosure, the court made the earlier order. However, subsequent correspondence from the US made no reference to the earlier threat of consequences on disclosure. As a result of what transpired, and the release by the US Department of Justice of memos issued by the Office of Legal Counsel which referred to techniques used in interrogation of terrorist suspects, the court concluded that no reason had been advanced by the SoS for keeping the information relating to identity of the "entities" confidential. It made the order for disclosure of the redacted paragraphs. The court considered it inconceivable that the Obama Administration would actually reconsider the intelligence sharing relationship, thereby putting the lives of UK citizens at risk. The court therefore considered there was a compelling public interest in the disclosure of the redacted paragraphs, which was necessary to uphold the rule of law in the UK and to secure democratic accountability for the actions of British Security Services. Nevertheless, as the Attorney General is conducting a criminal investigation into the allegations of Mr Mohamed, the court held it would be inappropriate to release the closed judgment into the public domain at this time.
Coram: Lord Justice Thomas, Lloyd Jones, J
Claimant: Dinah Rose QC and Ben Jaffey; Defendant: Pushpinder Saini QC and Karen Steyn; Others intervening. 
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Birch, R -v- Birch
Sentence
[2011] EWCA Crim 46
Thursday, 20 January 2011
It is not clear what the specific offences were that the appellant was convicted of, other than that they were offences of violence against recruits. The Court Martial imposed a sentence of 6 months detention and reduced the Defendant to the ranks. The appeal was limited to the additional order that the defendant be dismissed from the service. HELD:  As a matter of principle a Court Martial is a specialist court and is entitled to a level of deference from the CMAC. But on this occasion the Court Martial's sentence was excessive. The sentence of dismissal was quashed.
Coram:  Lord Justice Hughes, Mrs Justice Slade DBE, Mrs Justice Sharp DBE
Appellant:  Miss F Edington;  Respondent:  Brigadier P McEvoy OBE
Blackman,  Alexander Wayne Blackman-v-Secretary of State for Defence
murder/prisoner of war/PoW/dismissal with disgrace/anonymity of defendant/majority verdict/majority decision/revealing the vote of members/disclosing the vote
[2014] EWCA Crim 1029
22/05/2014
[The Indexed File contains corrections and links]
[Access for Subscribers]
B was convicted by Court Martial of the murder of a badly wounded Taliban fighter in Afghanistan and sentenced to life imprisonment with a minimum tariff of 10 years, reduction to the ranks and dismissal with disgrace. He appealed both conviction and sentence, contending it is a fundamental feature of the English criminal justice system, emblematic of a democracy, that those facing serious criminal charges are entitled to be tried before 12 members of the public and can only be convicted by a majority of at least 10 of the 12. A simple majority conviction is said to be inherently unsafe because it demonstrates sufficient doubt to defeat the criminal standard of proof. Reliance was also placed upon a passage in the third edition of Rant on the Court Martial and Service Law (edited by the present Judge Advocate General) at paragraph 5.126. The court was invited to declare s.160(1) of the Armed Forces Act 2006 incompatible with the Convention rights under s.4 of the Human Rights Act 1998 (corrected from the text). Against Conviction, HELD:  Referring to Twaite the court pointed to the judgment of Lord Judge CJ, which set out the case law which had subjected the Court Martial system in England and Wales to rigorous scrutiny. There the court concluded that the provision for a majority verdict set out in s.160(1) of the 2006 Act was entirely compatible with the Convention. The court held that, consistent with the system in the courts, no question should be asked as to whether the acquittal had been by majority or not. There were no circumstances in which the way the individual members of the court had voted should be revealed. The court made 3 concluding observations:
1.  it will always be open to Parliament to change the requirements of s.160;
2.  the issue as to whether the court should announce the majority, if a conviction is by majority, is a matter that could probably be dealt with under the Court Martial Rules made under s.13 of the Act. That is a matter for the Secretary of State for Defence;
3.  no question was raised at the outset of these proceedings as to whether it was appropriate for the appellant to be tried by Court Martial or by a court. The question as to whether proceedings should be before a court or a Court Martial is governed by a protocol between the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence made in September and October 2011, approved by the Attorney General for England and Wales and by the Ministry of Justice.
Against Sentence, HELD:  The sentence of imprisonment for life was an inevitable consequence of the conviction for murder. When approaching the question of the minimum term that the appellant must serve before being eligible for parole, the Court considered concluded that although he remains subject to a sentence of imprisonment for life, the minimum term which he must serve before being considered for parole should be reduced to 8 years.
Coram: Lord Chief Justice Of England And Wales; President Of The Queen’s Bench Division; and Vice-president Of Court Of Appeal, Criminal Division
Appellant:  Anthony C Berry QC and Peter Glenser
Respondent:  Lt Col David Phillips
Intervener:  Philip Havers QC
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Blackman and others, R  -v-
murder/prisoner of war/PoW/dismissal with disgrace/anonymity of defendant
MARINE A
CMAC Ref No: 201305804 C5, 5 December 2013
Judiciary reference
Title document
Sentencing remarks, 6 December 2013
The Court Martial Appeal Court considered the Application of the Appellant for leave to appeal under Rule 154 of the Armed Forces (Court Martial) Rules 2009 against an order lifting the reporting restriction that they should not be identified. The anonymity order protecting the identity of PO55242E, Sergeant Alexander Wayne Blackman, 42 Commando, Royal Marines, known as 'Marine A' was lifted. Sgt Blackman was subsequently sentenced by court martial, on 6th December 2013, to life imprisonment, subject to a minimum term of 10 years.
Coram: Lord Chief Justice of England & Wales, Mr Justice Tugendhat; Mr Justice Holroyde
Counsel for Judge Advocate General: Mr D Perry QC
Counsel for Marine A: Mr Hugh Tomlinson QC with Mr Peter Glenser
Blaskic (Tihomir), The Prosecutor -v-
ICTY/War Crimes/armed conflict/meaning of armed conflict/Command Responsibility
ICTY Judgment
3 March 2000
The defendant was charged with war crimes and crimes against humanity in relation to acts against Bosnian Muslims. Blaskic was appointed commander of the HVO armed forces headquarters in central Bosnia on 27 June 1992 and occupied the position throughout the period covered by the indictment and was accused of having known or having had reason to know that subordinates were preparing to commit those crimes or that they had done so and that he had not taken the necessary and reasonable measures to prevent the said crimes from being committed or to punish the perpetrators. According to the Tadic Appeal Decision: an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. This criterion applies to all conflicts whether international or internal. Planning implies that "one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases". Circumstantial evidence may provide sufficient proof of the existence of a plan. Instigating entails "prompting another to commit an offence" . The wording is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct. The ordinary meaning of instigating, namely, "bring about" the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof. An order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. Furthermore, what is important is the commander's mens rea, not that of the subordinate executing the order. Therefore, it is irrelevant whether the illegality of the order was apparent on its face.
Prosecution: Mr. Mark Harmon, Mr. Andrew Cayley, Mr. Gregory Kehoe; Defence: Mr. Anto Nobilo, Mr. Russell Hayman
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Blaymire, R-v-
Sentence/s.69/Appeal
[2005] EWCA Crim 3019
CMAC
Appellant charged with two offences: manslaughter, of which he was acquitted, and a lesser alternative charge that he had, by his negligent handling of the rifle, caused the unintended discharge of a round, thereby causing the death of a Sergeant. Appellant was sentenced to be dismissed from the Territorial Army, reduced to the ranks and fined the sum of £2,750. On review, the Reviewing Authority (RA) received legal advice from the Judge Advocate-General to the effect that the charge on which the appellant had been convicted had been wrongly drafted in that it alleged an offence that was not known to English law. He advised that a re-worded charge should be substituted for the charge on which the appellant had been convicted. The RA followed his advice. The JAG also advised that the sentence should be quashed and substituted by a fine of about £750. The RA declined to accept that advice and instead confirmed the original sentence. HELD:  In all the circumstances the sentence was excessive. Appellant's dismissal from the service was quashed. The court however confirmed all other parts of the sentence, namely reduction to the ranks and the fine which was imposed by the Court-Martial. To that extent and to that extent only the appeal was allowed.
Coram: Rose LJ, Nelson and Swift, JJ
Appellant:  Mr S Reevell; Respondent:   Mr H Keith.
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Blyth (Stephen), R-v-
Trial/Sentence/Fraud
GCM, Gütersloh, 12 Oct 01
16 charges (fraud and attempting to pervert the course of justice). Capt Stephen Blyth convicted by GCM of 10 fraud offences and 1 count of attempting to pervert the course of justice. His estranged wife testified against him. The enquiry centred around the Paderborn Equestrian Centre (PEC) whilst he was the RAO of QDG and QRH as well as OC of the PEC whereby he defrauded the account in a number of ways, including the theft of almost £6500 cash and the obtaining of a horsebox valued at almost £5000. He was imprisoned for 2 yrs and awarded stoppages of pay of £12000 pounds. The trial lasted 4 weeks before judge advocate Peter Gribble Esq. The case was prosecuted by Capt Russell Clifton (Army Prosecuting Authority); defence counsel was Mr Nigel May.
Reported by Dave Garfield
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Boote (Donna Lisa) -v- Ministry Of Defence
Employment/Sex Discrimination
[2003] NIIT 43
(29 September 2003) - from BAILII
Paragraph 14 of JS 132/98 potentially required that both she and her husband be deployed away from home at the same time. HELD: A female soldier was indirectly discriminated against on the grounds of her sex where the proportion of women who could comply with the requirement to deploy at short notice was considerably smaller than the proportion of men who could comply with it; the MOD could not demonstrate objective justification for the disproportionate impact which paragraph 14 had upon women; and B had suffered a detriment because army policy meant that she could not expect any particular weight to be attached to the fact that she had dependent children when decisions on deployment were being made.
For the Applicant: Ms Higgins; for respondent: D Morgan QC, Neasa Murnaghan
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Boškoski and Tarçulovski, Prosecutor -v-
Violations of the laws or customs of war/murder/cruel treatment/wanton destruction/Article 3 of the Statute/meaning of "protracted" armed violence in NIAC/Non-international armed conflict/sporadic acts of violence
Case No. IT-04-82-T
10 July 2008
On 12 August 2001, the village of Ljuboten came under a combined attack by police led by Johan Tarçulovski and the army of FYROM. In the course of the attack, six Ljuboten residents were alleged to have been shot by police and 13 ethnic Albanian residents were seriously beaten at Adem Ametovski's house, and that 10 of the remaining men of the original group of 13 were marched to the police checkpoint at the Braca house, and that they were subjected to beatings on their way to and at this checkpoint. These men were further physically and mentally abused at Mirkovci police station. One of the men is alleged to have died due to the cruel treatment that he received. It is alleged, further, that on 12 August, at least 90 male civilian residents from Ljuboten were arrested at Buzalak checkpoint while they were fleeing the village with their families, and that they were transported and detained at several police stations and also, in some cases, at Skopje Court II and Skopje City Hospital. It is alleged that the men detained at these various locations were further beaten. Further, the Indictment alleged that at least 14 houses in the village were set on fire by the police commanded by Johan Tarçulovski. On the basis of these allegations, the Indictment charged the Accused with three counts of violations of the laws or customs of war, namely murder, cruel treatment and wanton destruction, under Article 3 of the Statute. Boškoski was charged with failing to punish the perpetrators of the alleged crimes. These acts occurred during an armed conflict that began in January 2001 and continued until at least late September 2001, between the Security Forces of FYROM, i.e., the army and police, on the one hand, and the ethnic Albanian National Liberation Army ("NLA") on the other. Armed conflict of a non-international character exists when there is "protracted violence between governmental authorities and organized groups or between such groups within a State". This excludes isolated and sporadic acts of violence or other acts of a similar nature. However, the element of "protracted" armed violence in the definition of internal armed conflict has not received much explicit attention in the jurisprudence of the Tribunal. It adds a temporal element to the definition of armed conflict.
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Botham (John) -v-Ministry of Defence
Employment/Dismissal/article 6 rights/Damages/Abuse of Process
[2010] EWHC 646 (QB)
QBD
Claim for damages for breach of contract by MoD. The parties were bound by the findings of fact in the judgments of the Employment Tribunal of 17th May 2007 on liability and 2nd November 2007 on remedy. The substantive hearing of the claims was delayed for more than two years pending determination by the House of Lords in his case which was heard with others (Serco Ltd v Lawson [2006] ICR 250) that Employment Tribunals had jurisdiction in respect of employment abroad. In a separate judgment dealing with remedies sent to the parties on 7th November 2007 ('remedies judgment') the Employment Tribunal awarded Mr Botham damages for wrongful dismissal in the sum of £7,136.25 based on loss of salary and benefits for the three month notice period. The Claimant claimed that the Defendant breached express and implied terms of his contract of employment which led to his dismissal and caused him loss of earnings and benefits extending beyond his contractual notice period.
Three issues were argued:
1. Do the Particulars of Claim disclose a well-founded cause of action sounding in damages which does not fall within the Johnson exclusion;
2. Has the cause of action merged with the claim for breach of contract which was the subject of a judgment in the Claimant's favour in the Employment Tribunal;
3. Is the Claim an abuse of process? HELD: Applying the approach of Lord Nicholls in paragraph 28 of the judgment in Eastwood and McCabe the resultant claim falls squarely within the Johnson exclusion area. The Court of Appeal held, in The Governors of X School v R, that an employee whose right to practice his profession may be at stake in such disciplinary proceedings had a right under Article 6 to be afforded the opportunity to arrange for legal representation at those proceedings. However that decision does not oblige an employer to pay for such legal representation. On the findings of fact, the incurring of legal expenses for representation in internal disciplinary proceedings did not result from any breach of contract by the Defendant. The claim before the High Court raised a different cause of action from the contractual claim before the ET. The Particulars of Claim did not disclose a well founded cause of action sounding in damages which did not fall within the Johnson exclusion. The Claim was dismissed.
Coram: Slade, J;
Claimant: Frederic Reynold QC and Philip Mead (instructed by Dean Wilson Laing)
Defendant: Wendy Outhwaite QC (instructed by Treasury Solicitor)
Bowler and Darbyshire, R-v- Bowler and Darbyshire
section 18/section 20 OAPA 1861/suspended sentence/parity of dealing
[2013] EWCA Crim 2643
CMAC, 17th December 2013
Appeal by both appellants against sentence. B convicted on 26th November 2012, at a Court Martial before Judge Camp and other members of the Court Martial. She pleaded guilty to an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. Her plea followed the giving of a Goodyear direction in which it was indicated that the maximum sentence to be passed on a plea of guilty would be 18 months. Darbyshire was convicted after a trial on 25th July 2013 of causing grievous bodily harm with intent contrary to section 18 of the 1861 Act. He was not sentenced on that occasion but was subsequently sentenced to six years' imprisonment. B gave evidence in the trial of D. However, there were significant problems with proceeding to sentence her on the basis of the written basis of plea as it appeared that she had not accepted her guilt in the course of the pre-sentence report and there was also some concern that part of her evidence, whilst it was effective as against D, was designed to exculpate herself from her own involvement in these events.  HELD  In relation to B, the sentence of 11 months' detention was suspended for a period of 12 months. To that extent this appeal succeeded. In relation to D, there was no disparity. However, an appropriate starting point would have been a sentence of seven years, rather than eight. The sentence which was passed of six years was manifestly excessive. The sentence of six years' imprisonment was quashed and for it is substituted a sentence of five years' imprisonment. To that extent his appeal was allowed.
Coram:  Lord Justice Treacy, Mr Justice Wilkie, Mrs Justice Andrews DBE
First Appellant: Mr S M Andrews;  Second Appellant: Mr D Clark;   Crown:  Brigadier S Lythgoe
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Bowyer, R v Bulford District Court Martial ex p
Judicial Review/Jurisdiction/Time Limit
[1999] EWHC Admin 239 (18th March, 1999)
Allegation of GBH while serving in Bosnia. Accused discharged from the army, although he continued to be subject to military law under s. 132(3) for 6 months. He was brought to trial 1 day short of the 6 months, but prosecution not ready and trial adjourned sine die. 8 months later, trial re-opened but, as one of the members was being investigated, it was dissolved. A new trial direction was issued shortly afterwards. Application for judicial review, contending that the Attorney General's consent was required if the trial took place outside the 6 month period.    Held: refusing the application, that the requirement for the consent of the A-G was not the only safeguard against oppressive prosecution, as a stay could be obtained for delay or abuse of process. Although the court martial had been dissolved, the trial continued for the purpose of the Court Martial (Army) Rules 1997 r.81 until the charges were disposed of at the end of the trial process.
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Boyd, Hastie and Spear Saunby and Others (Appellants)-v- The Army Prosecuting Authority and Ors
Human Rights/Trial of s.70 offences/PPCMs
House of Lords, 18 Jul 2002
Conjoined appeals failed on both certified questions concerning (a) trial by court-martial in the UK of s.70 offences and (b) that the existence of the Permanent President rendered trial by C-M incompatible with art. 6. The House considered the case of Morris and HELD: 1. Trial by C-M of s.70 offences was not incompatible with the convention; 2. The existence of the PPCM at a C-M was not incompatible with the convention; 3. The use of junior officers as members of the court was not incompatible with the convention; 4. The existence of the process of review by lay officers of C-M decisions, which could not operate other than to the accused's advantage, was not a breach of the convention.   [Also reported in BAILII]
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Boyle -v- United Kingdom (Appeal)
Human Rights/Commanding Officer/detention/legal representation
Grand Chamber
8 January 2008  
See also: [The Times, January 14, 2008]
On Appeal. The court considered the earlier cases of Hood, Thompson, and Jordan. The Grand Chamber Held UNANIMOUSLY that:
1. There has been a violation of Article 5 § 3 of the Convention in respect of the lack of independence and impartiality of the applicant's commanding officer in the 12th Regiment of the Royal Artillery;
2. There has been no violation of Article 5 § 3 of the Convention in respect of the alleged failure to inform him of the reasons for the applicant's detention in relation to the period 12 November 1999 to 22 February 2000;
3. There has been no violation of Article 5 § 3 of the Convention in respect of the alleged lack of a factual or legal basis for the applicant's detention in relation to the period 12 November 1999 to 22 February 2000;
4. It is not necessary to consider the remainder of the applicant's complaints under Article 5 § 3 of the Convention. 
Applicant:  J. Mackenzie Esq; Respondent:   Mr J. Grainger of the Foreign and Commonwealth Office.  
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Boyle v United Kingdom
Human Rights/Commanding Officer/detention/legal representation
ECtHR, 25 October 2005
Application no. 55434/00
On 5 Nov 1999, B charged with indecent assault. Co-accused charged with rape. B was provided with "The Rights of a Soldier" pamphlet. The case was referred to Higher Authority and then to the APA. Retained in custody for a long time. The applicant invoked Article 5 § 3 of the Convention and complained: (a) that his CO could not constitute a suitable "judge or other officer";
(b) that he had no representation (legal or otherwise);
(c) that his CO did not make a decision on 6 November 1999 as to whether to retain him in close arrest;
(d) that there was no basis in fact or law for the decision to keep him in close arrest (because, in particular, he was not a habitual offender);
(e) that he was not informed of the reasons for his detention until 14 January 2000;
and (f) that the officers concerned did not carry out their obligations under the Army's rules.
The Court considered these complaints were not manifestly ill-founded and unanimously decided to declare the application admissible.
Applicant:  J. Mackenzie Esq; Respondent:   not known.  
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Bradshaw, R -v-
Rape/Appeal/Sentence/IPP/leave to appeal/renewed application
[2012] EWCA Crim 1652
Renewed application for permission to appeal against the sentence of Imprisonment for Public Protection imposed following a Court Martial, after which he had been convicted of seven offences of indecent assault and one offence of attempted sexual assault involving five victims in total, and one offence of rape on a different victim contrary to the relevant sections of the Sexual Offences Act 2003. All the victims were male and were serving soldiers.
Coram: Lord Justice Moses, Mr Justice Keith, Mr Justice Foskett
Non-Counsel application
Brannigan-v- R
Trial/inconsistent evidence/Judge Advocate/Direction
[1998] EWCA Crim 255
CMAC, 26th January, 1998
Defendant found guilty on two charges of conduct to the prejudice of good order and military discipline, contrary to section 69 of the Army Act. He was sentenced to be reduced to the ranks and dismissed from Her Majesty's Service. Two inter-linked complaints were made about the conviction. 1. a complaint that the prosecution evidence was so inconsistent and unsatisfactory that the fact that the court convicted upon it demonstrates that it cannot have properly considered the evidence as a whole, and that therefore the conviction is unsafe because there must be a lurking doubt about it. 2. The the Assistant Judge Advocate, when directing the court as to the law, misdrected them as to the burden and standard of proof. HELD: These convictions were safe. The appeal was dismissed.
Coram:  Buxton LJ, Rix and Kay JJ
For Appellant: M Humphreys Esq;  For Respondent: M Zeidman Esq.
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British Gurkha Welfare Society -v-Ministry of Defence
Judicial Review/Gurkhas/Pensions/ECHR Article 14
[2010] EWHC 3 (Admin)
High Court, 11 January 2010
Challenge to pension arrangements put in place for Gurkhas following a Government review, published in December 2006 and covered by Armed Forces (Gurkha Pensions) Order 2007 SI 2007/2608. The effect of the changes made in 2007 was to enable Gurkhas to elect to transfer to the Armed Forces Pension Scheme ["AFPS"] from the Gurkha Pension Scheme ["GPS"] but only if they served after 1 July 1997. For time served after 1 July 1997, the transfer rights are calculated on a full year for year basis of service. The effect is that pension accrues for those years broadly in the same way as it does for other British soldiers. However, for time served prior to 1 July 1997, the transfer value is calculated on an actuarial value basis for service given. The claimants challenged the decision :
  1. that Gurkhas who retired prior to 1 July 1997 are not entitled to transfer their pension rights under the GPS into the AFPS;
  2. for those Gurkhas who retired after 1 July 1997 (when the Gurkhas thereafter became UK based) and therefore can transfer their pension rights into the AFPS that the service before that date does not rank on a year for year basis but rather on an actuarial basis.
Held: Ministry of Defence's decision to apply a cut-off point did not represent discrimination. The claimants appeared to regard discrimination on grounds of nationality as justified when it provides benefits but not when it gives rise to disadvantage. All of the differences flow from the unique position of the Gurkha Brigade in the British Army born of its long history of different and special treatment. The claims based on discrimination on grounds of nationality and age failed. The claimants did not establish that the defendant failed to comply with the duty imposed upon it by 71(1) of the Race Relations Act 1976. There could be no question on the arguments advanced in this case by those who retired after 1 July 1997 succeeding in their challenge, but those who retired before failing, or vice versa. For the purposes of section 31(6) of the Senior Courts Act 1981, the defendant was correct in suggesting that any relief would give rise to very significant detriment to good administration.
Coram: Burnett, J
Claimant: Mr. D. O'Dempsey and Miss O. Dobbie (instructed by Russell Jones & Walker); Defendant: Mr. R. Singh QC and Mr. Grodzinski (instructed by Treasury Solicitor)
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Brodie & another, R-v-
Charge/Pleading/Stoppages
[2004] EWCA Crim 3519
CMAC
The accused pleaded guilty to the offence of aggravated vehicle taking and were each sentenced to 28 days' detention and put under stoppages of pay until they had repaid £3,000 by way of compensation for damage occasioned to the vehicle. The accused appealed. The accused submitted that the charge should have specified the amount of the damage to the vehicle, as required by §8 of Schedule 1 to the Court Martial (Army) Rules 1997. They questioned whether the charge had been properly framed in order to give the court martial power to make the order for stoppages. Held: Appeal dismissed. The particulars of the offence had complied with r 8. Had the accused been under any doubt as to how much they would be ordered to pay by way of stoppages, they would have been entitled to ask for particulars of the charge. However, in the instant case, the amount of damage had been perfectly clear from the witness statements.
Coram:  Gage LJ, Nelson and Field JJ
For Appellant: D Howell;  For Respondent: James Mason Esq.
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Brown, R-v- James Brown
Lawful command/Disobedience/Sentencing/PTSD/dismissal
[2014] EWCA Crim 1160
CMAC, 20 May 2014
D pleaded guilty to an offence of disobedience of a lawful order contrary to section 12(1) of the Armed Forces Act 2006, was sentenced to 60 days' service detention, reduction in rank and dismissal from the Service. He appealed and argued that the sentence was manifestly excessive as a result of the Court Martial having erred in its approach to the opinion of the psychiatrist, in that it failed properly to reflect that the offence was committed because the applicant was unwell and that that the Court Martial was not entitled to take into account the applicant's annual appraisals or his antecedents, when considering the circumstances in which this offence took place. He submits that the Court Martial was obliged to accept the opinion of Dr Pool that the reason why the applicant committed this offence was because he was suffering from post-traumatic stress disorder.  HELD:  application refused.
Coram:  The Lord Chief Justice Of England And Wales (Lord Thomas of Cwmgiedd); Mr Justice Hickinbottom; and Mr Justice Jeremy Baker
For Appellant: Mr S Reevell;  For Respondent:  Brigadier S Lythgoe
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Brown (Kirsty Elizabeth), R -v-
Court Martial/Absence without leave (AWOL)/Disobedience to a Lawful Command/Terminating Ruling/Appeal/Joinder
[2007] EWCA Crim 2632
19 July 2007 
The accused failed to return to HMS DRAKE from authorised leave on 8 Jan 07. On 29 Jan 07, she was contacted by a Royal Navy Police Officer, of superior rank, and ordered to report to the Duty Provost at the Royal Navy Police Headquarters in Plymouth the following day. The accused failed to report. On 27 Feb 07, she was arrested by civilian police. Accused was charged with two offences: Absence Without Leave contrary to section 17(1)(a) of the Naval Discipline Act 1957 and Disobedience to a Lawful Command contrary to section 12 of the Naval Discipline Act 1957. Before the trial started, the JA, of his own motion, objected to the joinder of the two charges. He stated that when absent without leave a person could not be guilty of disobeying a lawful command, that it was not right for two charges to be based upon the same facts and that the facts surrounding the wilful disobedience were an aggravating feature of the absence without leave rather than a separate offence. Consequently, he quashed the wilful disobedience on the ground that it was oppressive. The Naval Prosecuting Authority appealed this ruling under the Courts-Martial (Prosecution Appeals) Order 2006. HELD: JA wrong to hold that when a serviceman or woman was absent without leave they were no longer under an obligation to obey a lawful order. Nor was it correct to say that two charges cannot be based upon the same facts. On the contrary, the fact that two offences arise out of the same facts can be a good reason for joining both charges. The offence of disobedience to lawful commands contrary to section 12 of the 1957 Act is a different offence from that of absence without leave under section 17. Furthermore, the former offence is punishable by imprisonment without limit, whereas the maximum term is two years for the latter offence. For this reason alone it was legitimate to add the second charge. Furthermore, the particulars of the first charge (absence without leave) are quite different from those of the second (disobedience to an order). Accordingly joinder was proper and was not oppressive.
Nota Bene:  This was the first appeal to be brought under the Courts-Martial (Prosecution Appeals) Order 2006. At the outset, the CMAC dealt with a conundrum as to its jurisdiction. How was Article 1, which provides that the Order only applies to trials which commence after 5 Jul 06, to be reconciled with Articles 4(1) and 4(13) that purport to make Article 4 applicable to a ruling that is made before the trial commences? The CMAC stated that Article 1(2) must be read as if it provides "this Order shall apply only to trials by courts-martial which commence or are to commence on or after 5 Jul 06".
Coram at first instance: J ABurn
Appellant:  Cdr J Pheasant RN (Royal Navy Prosecuting Authority)  
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Brown (Peden),  R -v-
Sentence, fraud, JPA, Senior SNCO
[2010] EWCA Crim 2912
Tuesday 23 November 2010
On 7 July 2010, at a District Court Martial held at the British Forces Germany Military Court Centre, before Judge Hill (Assistant Judge Advocate General), the appellant pleaded guilty on re-arraignment to six charges of fraud. Sentence was adjourned for reports. On 4 October, before the same court, he was sentenced to consecutive terms of three months' imprisonment on the first two charges and to concurrent terms of three months' imprisonment on the remaining charges, a total sentence of six months' imprisonment. He was ordered to be dismissed from Her Majesty's Service, to be reduced to the ranks and to pay compensation in the sum of £8,590.02. He appealed by leave of the single judge against the sentence of imprisonment only. No application was made for leave to appeal against the other orders. HELD:  There can be no criticism of an immediate custodial sentence in this case. The appellant's offending was of a nature and degree which called for an immediate sentence, as the Guideline makes clear.
Coram:  Lord Judge, Mr Justice Calvert-Smith and Mr Justice Griffith Williams
Appellant:  Miss S Shotton;  Respondent:  Brigadier P McEvoy OBE
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Buchan, Rv
Careless Driving/Time limits for prosecution
CMAC, 12th March 2007
Appellant convicted by court martial of driving without due care and attention. He argued the charge was, in civilian terms, triable summarily only and that the position at courts-martial should be equated with the position which would have arisen before the magistrates' court. Accordingly, he contended that the fact that no 'information' had been laid within the six-month time limit imposed for summary offences under s 127 of the Magistrates Court Act 1980 meant that as the magistrates' court would have had no jurisdiction to try the charge, so the courts-martial was without jurisdiction. The judge advocate general rejected that submission and the defendant was convicted. Held: Appeal dismissed. The courts-martial had had the jurisdiction to try the defendant. The fundamental difficulty faced by the defendant was that s 127 of the 1980 Act simply did not apply to courts-martial proceedings and it followed that he could not pray that provision directly in aid.
Appellant:  Gilbert Blades Esq;   Respondent:   David Richards (instructed by the Army Prosecuting Authority) for the Army.
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Buchan, R v
Sentence/careless driving/First Instance
DCM, 28th June 2006
Charged with careless driving, Gunner Buchan was third choice duty driver. He had not been familiarised to drive Land Rover Wolfs in Germany, left hand drive. He did not get his work ticket signed and left with out this authority. He lost his way and was on the wrong road at the time of the accident. The two front seat belts failed. His three passengers were killed. Sentenced to be fined £1000. In passing sentence, the court remarked that he was driving too fast for his capability and experience, bearing in mind he had three passengers and was unfamiliar with the road. However, without doubt he was put into the situation where he was able to make that misjudgment about his own driving, namely, that somebody of his competence and experience should never have been given that duty.
Coram: Judge Advocate Burn
Prosecution:  Col C Miskelly, APA; Defence:   Mr Gilbert Blades.  
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Buchanan and Falls, R-v-GOC 2 Div, The Army & Ano'r, ex p
Sentencing
[1998] EWHC Admin 955
(14th October, 1998)
Time spent in close arrest should be taken into account when reviewing sentences imposed by court-martial. Judicial Review granted on this basis and also on the refusal of the military authorities to give reasons for their decisions. [pre Findlay decision].
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