England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
General Court-Martial Colchester
Assistant Judge Advocate General Seymour
CM/34/2005

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2006

LORD JUSTICE HOOPER :

1. On 9 August 2005 at a General Court Martial held at Colchester (Assistant Judge Advocate General Seymour) the appellant pleaded guilty to unlawful low flying contrary to section 51 of The Air Force Act 1955 (charge 1) and negligently causing damage to aircraft belonging to Her Majesty contrary to section 44A (1)(d) of the Air force Act 1955 (charge 2). He was sentenced to be fined £2500 and to be severely reprimanded.
2. The appellant now appeals against his conviction on charge 1 only by leave of the full court. Allowing the appeal would have no effect on the outcome of the case given that he had also pleaded guilty to charge two.
3. The appellant flew a Jaguar plane at a height lower than 100 feet, hit a tower and caused substantial damage to the plane. Fortunately he, himself, survived. Flying at under 100 feet was forbidden by the Regulations.
4. Mr Blades submitted to the Judge Advocate that the offence of low flying is an offence of full mens rea and that the prosecution had to prove that the appellant either knew that he was flying under 100 feet or was reckless. This "defence" found its origin in answers given by the appellant in interview after the collision in which he cast doubt on the proper functioning of the instrument which told him at what height he was flying. It was also based on expert evidence about the unreliability of such devices. The prosecution successfully argued that the offence was one of strict liability.
5. We turn to the facts in a little more detail. Between 26 June and 8 July 2004 personnel from 41 Squadron were deployed to RAF Akrotiri with 8 Jaguar aircraft to undertake an armament practice camp and were allocated facilities at Golf Dispersal on the Station. During the morning of 8 July the first 5 aircraft departed to return to RAF Coltishall. The remaining 3 aircraft were left under the command of the appellant, the nominated Formation Leader. The weather was clear and visibility was good. The appellant was the captain and pilot of aircraft XZ114 and he decided that his formation would conduct a fly past over Golf Dispersal to say goodbye to the ground crew. He received Air Traffic Control clearance to undertake a low-level flight over Golf Dispersal and the runway. The controller, Sergeant Brown, expected the aircraft to conduct a low level flight at 500 feet along the centre of the runaway before departing. He did not expect the aircraft to fly over the airfield as that would require prior authority. The aircraft captain, and not Air Traffic Control, was responsible for the safety of the aircraft and he was expected to adhere to authorisation and briefs. When briefing his wingmen, Flt. Lts Walls and Tennant, about the return to Coltishall, the appellant did not mention a fly past. At his aircraft he asked Junior Technician Lawson, who was carrying out checks, whether other pilots had done a flyover. Lawson replied in the negative. The appellant said he had better not do one and Lawson said "Go on, sir, you know you want to." The appellant said he would not do one as they could be a bit funny about it (in Akrotiri).
6. While in the cockpit getting ready for take-off the appellant told the Ops SNCO that he might want to tell the engineers and others to go outside as they (the formation) would be coming back after take-off; they were going to do something special on departure. The three aircraft took off and approached the main runway. The appellant's lead plane descended to a height of between 50 and 100 feet. The other two planes were above and behind and flying at a lower speed. As his aircraft crossed Golf Dispersal it banked to starboard and climbed turning northwest towards the runway. The other two aircraft remained straight and level. The appellant's plane collided with one of the two floodlight towers on the western side of the dispersal. The lighting gantry shook and a cloud of debris showered down. A subsequent sweep of the dispersal recovered fibreglass and metal fragments. A vertical support post to the tower was damaged and repairs cost £818.85.
7. A witness, Corporal Clark, said that the aircraft approach was quite fast and was the lowest he had seen in his 12 years in the RAF. The appellant identified damage to his aircraft and returned to RAF Akrotiri. He cursed himself, said that he couldn't believe he was bounced into doing that, and expressed concerns for his future career. He telephoned Wing Commander Blake at RAF Coltishall and said he had "fucked up" and there would have to be a Board of Inquiry. He had seen the tower late and subsequently found damage to his wingtip; he had obviously clipped the tower. The cost to the Air Force was over £60,000.
8. After take off the appellant said in interview that he had set the Rad Alt. The prosecutor summarised this part of his interview in the following way:

"He is asked again about his Rad Alt and what his settings were. He says, 'Yes, I set it at 100 feet and it did go off for a brief period and I don't recall exactly how long it went off for. It seemed like instantaneous but it could have in reality been one or two seconds.'

He is asked bout the Rad Alt and he says, 'That at 100 feet I notice if you do hug at 100 feet it goes off quite often at 110 and sometimes more, but the rule says you cannot bug any less than 100 feet so you just put up with it. 'At what point would you have set your Rad Alt?' He says, 'After take-off.' He is then asked again about the height. The question is, 'so the point that you were going over the line of buildings, what did you feel that you were at, at that time?' He says, '100 feet. I do not recall from the last time I looked at the Rad Alt consciously descending but I did bank and then looked solely at the engineers on the ground and the aeroplane... I had to have flown below 100 feet because we know what height I clipped this tower at. How I got down there I really do not know and I cannot resolve in my own head today."'

9. He also said in interview that his actions were unprofessional, illegal and that he had no defence and no excuse.
10. The Judge Advocate ruled that the offence was one of strict responsibility. The appellant having later pleaded guilty, the Judge Advocate said when passing sentence:

"Squadron Leader Jackson, the first offence illustrates the absolute necessity. both from the Service and the public point of view, for pilots to observe the highest standards in the way they fly their aircraft. The offence of unlawful low flying is particularly serious when committed by a member of the Royal Air Force entrusted as he is with the handling and control of potentially lethal equipment. You should have been aware that you were flying very low and over a potential hazard. Such misconduct involves a significant breach of trust as an officer, as we were told by flying so low you risked your own life and that of others, and of course the consequences of doing that if there had been an accident much worse than the collision are too awful to contemplate. Moreover here, as a direct result of the first offence, your aircraft of course actually collided with a floodlight tower causing significant damage to your own aircraft, which involved, as we have heard, a total cost of replacement of £63,000."

11. Given the appellant's plea to charge 2 and given his answers in interview it seems to us inevitable that the Court Martial would conclude that the appellant ought to have been aware that he was flying very low. This is not one of those cases where a person without fault has been convicted of a strict liability offence.
12. We turn now to the challenged ruling. We set out that ruling almost in fill.

"The Relevant Legislation

It is provided by Section 51 of the Air Force Act 1955 as follows:

'Any person subject to Military Law who, being the pilot of one of Her Majesty's aircraft, flies it at a height less than such height as may be provided by any regulations issued under the authority of the Defence Council except-

(a) while taking off or alighting, or

(b) in such other circumstances as may be so provided,

shall, on conviction by court-martial be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Provided that where a pilot flies an aircraft in contravention of this section on the orders of some other person who is in command of the aircraft, that other person shall be treated for the purposes of this section as having been the pilot of. and flying, the aircraft at the material time.'

It follows then that the only occasions where flying at less than the height prescribed is permitted are

Either when taking off or lending

Or on occasions prescribed by any regulations issued by the Defence Council.

The regulations in question are the Ministry of Defence Aircraft Regulations (JSP 500) and the relevant regulations are Reg 300. The regulations prohibit flying at less than 2000 feet save in the following circumstances:

(a) When specifically authorized under the terms detailed in Reg 301 -which covers what might be termed local authorisation for flying at heights as low as not less than 100 feet,

(b) when taking off or landing

(c) During an emergency, or when making a precautionary or forced landing

(d) When compelled to do so by weather

(e) When so directed by an Air Traffic Control authority

(f) When engaged on search and rescue duties.

Before any Court-Martial could find an accused guilty of an offence under Section 51 it would have to be sure therefore that none of these situations applied. In other words it would have to be sure that

(i) the Accused was the pilot of one of Her Majesty's aircraft at the material time,

(ii) he was flying at a height less than that prescribed in the regulations, and

(iii) none of the exceptions I have just outlined applied.

Whilst the Regulations refer in terms to "Minimum Separation Distance" the only distance that is relevant under Section 51 is height and accordingly it is height above ground level or other obstacle with which this charge is concerned -not any horizontal distance from obstacles such a the floodlight tower in this case.

It is to be noted that there is no wording in the legislation that it must be proved that the Accused knew that he was flying below the permitted height -the statute appears to create an offence of strict liability or an absolute offence just as in the Road Traffic Act and other regulatory statues. For instance there is no need to prove that someone accused of exceeding the speed limit or driving with excess alcohol knew that he was exceeding the relevant limits -the offence is committed if the Accused does the act prohibited by statute.

The punishment prescribed for breach of Section 51 is a maximum sentence of two years imprisonment or such other lesser penalty prescribed by the 1955 Act. However, it has been argued before me that a finding of guilt would no doubt have some effect on the Accused's career as a pilot - and that is something which one would ordinarily expect to be the case.

4. The Arguments

The prosecution contend that Section 51 creates an absolute offence and that there is no requirement to prove any degree of mens rea on the part of an Accused at all -they say that the offence is made out unless one of the exceptions apply. Further they argue that whilst an Accused's state of knowledge may be reflected in the sentence imposed, it does not provide a defence.

On the other hand the Defence contend that it is wrong to interpret this Section in that way -an element of mens rea must be imported into the words of the statue. They contend that it must be shown that the Accused knew that he was flying below the permitted height. In particular they point to the fact that this offence carries with it a sentence of imprisonment and can thus be described as truly criminal in character.

5 Offences of strict liability.

These require no proof of any particular mens rea on the part of someone accused of such offences -a classic example is to be found in the provisions of the Road Traffic legislation covering driving with excess alcohol. If analysis of the relevant sample proves a proportion of alcohol higher than that permitted, the offence is committed without the need for any further proof.

The rationales behind the creation of such offences is generally that they cover conduct which of itself is potentially dangerous to other members of the public and accordingly the public interest overrides the need to prove knowledge on the part of the alleged offender that he was in fact committing an offence or did the act complained of with any particular mens rea. Guilt is to be found in the commission of the act -no particular frame of mind has to be established before guilt is established.

This reflects the fact that some conduct -often not truly criminal in the way most people would understand that expression -carries with it such grave risk of endangering pubic safety or is so heavily the cause of public concern, that it can properly be punished without the need for the establishment of any degree of mens rea.

There can be no doubt at all that low flying is something which is potentially dangerous to the public -whoever is responsible. It does not need any exposition here of the potential dangers should an aircraft collide with a structure situation on the ground. Indeed there are dangers even if no collision occurs.

Offences of strict liability are usually creatures of stature -the common law finding the notion of guilt without proof of a guilty mind repugnant.

6. The relevant case law

Both sides are agreed that the law on this point is governed by the well-known cases of Sweet v Parsley [1970] AC 132 and Gammon (HK) Ltd v Attorney-General of Hong Kong [1985] AC 1.

The former case concerned a prosecution under the relevant Misuse of Drugs legislation -the second a piece of Hong Kong legislation concerned with the construction industry. In the first their Lordships imported a requirement of knowledge on the part of the offender. In the second they held that the relevant legislation did indeed create an absolute offence.

The words of Lord Reid in Sweet v Parsley are well known:

"It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word "knowingly," is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say "must have been" because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."

The legislation under discussion in that case concerned the planning design and construction of building works. The relevant offences carried penalties of 3 years imprisonment and a HK$250,000 fine. Those penalties did not deter the Privy Council from holding that an offence of strict liability had been created.

7 Other sources

Sections 24-69 of the Air Force Act 1955 create a series of offences which are not offences against the civil law of England and Wales but constitute a separate class of offences known as military offences. Some require proof of mens rea, some do not - likewise some provide for specific defences. some do not.

The Act of 1955 along with its companion legislation concerning the other armed forces of the Crown establishes the manner of conducting service life from recruitment to discharge and sets the parameters for what is lawful and unlawful conduct for those subject to military law.

The reason that those subject to military law find themselves subject to legal restrictions going beyond those applicable to civilians can be found in the very nature of military life -namely the absolute necessity for good order and discipline at all times tempered with the need in both peace and war to act lawfully. Further than that persons subject to service law handle equipment which is by its very nature capable of inflicting greater harm to persons or damage to property than is the case in most civilian occupations.

This may on occasion result in what may appear to a civilian lawyer an injustice but the obligations on those subject to military law are onerous and imposed for the reason I have just outlined.

As I have said some of the offences created by Sections 24-69 of the Act of 1955 provide that the offence is only made out if a particular state of mind is proved. As particularly relevant to this case the Prosecution point to the terms of Section 49 which creates the offence described as Dangerous Flying and reads as follows:

'Any person subject to military law who is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft or aircraft material which causes or is likely to cause loss of life or bodily injury to any person shall on conviction by court-martial be liable to imprisonment or any less punishment provided by this Act:

Provided that if the offender has not acted wilfully or with wilful neglect he shall not be liable to be imprisoned for more than two years."

It is plain therefore that in that section Parliament

(i) created an offence which carried a more substantial penalty than section 51, and

(ii) created an offence which specifically provides for mens rea and higher levels of punishment if that is proved.

A similar situation occurs in Section 44A -the provision under which the second charge against this accused is brought -which provides as follows;

'(1) Without prejudice to the generality of section 44 above, a person subject to military law shall be guilty of an offence against this section if he -

(a) Wilfully damages or causes the loss of, or is concerned in the wilful material damage or loss of, any of Her Majesty's aircraft or aircraft material, or

(b) by wilful neglect causes or allows damage to, or the loss of, any of Her Majesty's aircraft material, or

(c) without lawful authority disposes of any of Her Majesty's aircraft or aircraft material, or

(d) by any negligent act or omission causes or allows damage to, or the loss of, any of Her Majesty's aircraft or aircraft material, or

(e) is guilty of any wilful or negligent act or omission which is likely to cause damage to, or the loss of, any of Her Majesty's aircraft or aircraft material, or

(f) during a state of war, wilfully and without proper occasion, or negligently, causes the sequestration by or under the authority of a neutral state, or the destruction in a neutral state, of any of Her Majesty's aircraft.

(2) A person guilty of an offence against this section shall. on conviction by court-martial, be liable -

(a) if his offence consisted in an act or omission falling within paragraph (a), (b) or (c) of subsection (1) or if it consisted in an act or omission falling within paragraph (f) of that subsection and it is proved that he acted wilfully or with wilful neglect, to imprisonment or any less punishment provided by this Act: in any other case. to imprisonment for a term not exceeding two years or any less punishment provided by this Act.'

There are other offences in the Act which do not import any concept of mens rea at all but provide for specific defences e.g. section 46 which makes the loss of service property an offence but provides for a defence of taking reasonable care. That is by no means the only example.

Others -mostly concerned with conduct which is only ever likely to be encountered in service life -such as Section 26(1) do not make any defence or mens rea at all.

An interesting comparison can be drawn with the provision in respect of the civilian position with regard to low flying. The position there is governed by the provisions of the Civil Aviation Act 1982 and various regulations made under Sections 60 and 61 of the Act.

The first of those to which my attention has been drawn is the Air Navigation Order 2000. Article 64 creates the offence of Endangering safety of any person or property and provides as follows:

'A person shall not recklessly or negligently cause or permit an aircraft to endanger any person or property

That offence carries a penalty of a fine on summary conviction and a fine or a maximum of two years imprisonment or both on conviction on Indictment. Thus an offence which is equivalent to that created by Section 49 of the Air Force Act 1955 carries with it more limited punishment than it would under those provisions.

The United Kingdom Rules of the Air Regulations 1996 -again made under the general authority of the CAA 1982 -provide for an offence of Low Flying in the field of civil aviation. The offence is to be found in Regulations 5(l)(e) and carries a penalty of a fine at Level 4 -currently £2500.

It follows therefore that the position of the Air Force pilot is more severely punished than his civilian counterpart. Whilst the dangers inherent in any aircraft colliding with structure on the ground is great, the dangers when that aircraft is equipped with armament of any description must he multiplied.

8 Conclusions

Whilst it is always possible to adumbrate situations which would appear to he covered by a statutory provision and yet could have manifestly unjust results, one has to rely on a good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise of course the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case.

One is always reluctant to conclude that Parliament has created an absolute criminal offence or one of strict liability, but there are occasions when it has done so. In this case I have come to the conclusion that the Prosecution was correct in their assertion that it has done so in the case of Section 51 AFA 1955.

My reasons for doing so are these:

(i) Low flying creates a serious hazard and risk of serious danger to person and property and one where the strictest possible standards must be imposed to ensure the avoidance of such danger occurring.

(ii) When Parliament legislated in the field of civil aviation some years after the enactment of the Air Force Act 1955 it created an offence of Low Flying which was an offence of strict liability.

(iii) In other sections of the Air Force Act 1955 which are concerned with flying elements of mens rea are specifically imported by those sections.

(iv) The provisions of Section 51 of the Air Force Act 1955 are not unique in imposing the sanction of imprisonment for the commission of an offence of strict liability.

(v) Indeed the case of Gammon provides an example of a situation where even more serious penalties than those available under section 51 did not prevent an offence of strict liability being upheld.

(vi) Those entrusted with the responsibility of handling lethal equipment of the nature which is entrusted to service personnel cannot complain if they are made subject to more severe penalties than their civilian counterparts -it is a responsibility which goes with the privilege of serving in the Armed Forces.

(vii) The training which such personnel receive and general common sense dictate that pilots flying at extremely low levels should have a very good idea indeed of the level at which they are flying whether or not their instruments are faulty -particularly if they are actually flying below the top of some potential hazard on the ground.

If an instrument fault causes an otherwise blameless pilot to fly below the prescribed level, then no doubt prosecution would be brought."

13. Mr Blades in concise submissions reiterated the arguments which he had made to the Judge Advocate as did also Mr Milne on behalf of the Respondent. Mr Blades particularly relies on the passage from Lord Reid's speech in Sweet & Parsley which the Judge Advocate has set out in his ruling.
14. In his ruling the Judge Advocate gave the generally accepted rationale for offences of strict responsibility. The rationale would, more easily, justify the interpretation of these offences as punishing those who have at least acted negligently. That is not the route which has found favour with the courts of this country.
15. The Judge Advocate identifies in his paragraph 8 the safeguards to prevent manifestly unjust results. In his words:

"One has to rely on the good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise, of course, the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case."

16. In our judgment the ruling of the Judge Advocate is impeccable. It is not necessary for this Court to add anything to what he has said. Mr Blades has not put forward any fresh arguments before us. For the reasons which he sets out this is clearly an offence of strict liability.
17. Before leaving this appeal we would like to add one thing. In the passage we have just quoted the Judge Advocate identifies the methods to avoid manifestly unjust results. We think that it is important to stress the role of the court in the sentencing process. At the sentencing stage, either by use of a Newton Hearing or by some other means it is important for the court to determine the level of culpability to the criminal standard of proof. A pilot who knowingly or recklessly flies his plane at less than 100 feet may expect a higher sentence than one who flies lower than that height negligently (as did the appellant). Likewise if there is no knowledge or recklessness or negligence then it may well be that the appropriate penalty is one of an absolute discharge. Recently the Court of Appeal has addressed similar issues rising out of the Sexual Offences Act 2003 see C G & R v Secretary of State of the Home Department [2006] EWCA Crim 821 particularly at paragraph 47.
18. This appeal is dismissed