England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS MARTIAL APPEAL COURT
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 September 2010

1. LORD JUSTICE HOOPER: [To the appellant] We are allowing your appeal and we are quashing your conviction.
2. On 11 June 2010, at a Court Martial held at the Portsmouth Military Court Centre, the appellant was found guilty by a majority of four to one of the offence of assault by penetration. The Judge Advocate was Judge Large, Assistant Judge Advocate General. The appellant appeals against conviction by leave of Henriques J. The appellant was sentenced a few days later to 12 months' military detention with consequential orders.
3. He was in training to become a Medical Assistant in the Royal Navy, as was also the complainant, whom we shall simply call "T". He was 20, she was 19, and they completed their training in Aldershot before being sent to HMS Nelson in Portsmouth. They knew each other well from their training in Aldershot and travelled to Portsmouth on Sunday, 10 May 2009.
4. It was the prosecution's case that although the appellant and the complainant were either in or on the bed in her cabin with her consent, she had told him to stop and that if he did not stop he could leave her cabin. It was her evidence that she fell asleep and awoke to feel the appellant's fingers in her vagina. She pushed him off and told him to leave, which he did.
5. We take the facts from the sentencing remarks:

"We have to sentence you for one offence of assault by penetration. ... You pleaded not guilty to that offence but were convicted by the Board. Because of the unique circumstances pertaining in the Court Martial and a trial in the Court Martial I sentence together with the Board Members who convicted you. I am therefore able to know, and it is important I do know, what view they took of the case against you and what facts they found proved. I am going to set out the factual basis upon which we sentence you. A lot of this is not in dispute.

You and MA [T] were good friends. When you arrived at HMS NELSON on the Sunday before the offence she and you kissed for a couple of minutes. This was initiated by her. On the Wednesday of that week, the day before the offence, she came into your cabin during the late afternoon. The two of you talked and the talk turned to sexual matters. Again, the Board found at her instigation, you both kissed and engaged in mutually consensual sexual touching, you touching her vagina, she touching your penis. This ended after a few minutes, again by consent. Nothing more was said between you about these encounters. The Board found, and I share their view, that you were wondering at that stage where the relationship was going with MA [T] and whether or not you may have more consensual sexual activity with her, possibly progressing to intercourse.

The next day, the Thursday, you and she went out with others. You had about nine pints of beer; she had about nine measures of Malibu and coke throughout the evening. Neither of you were rolling drunk but you were certainly both affected by alcohol. You arrived back in NELSON, you went to her cabin and the Board found this happened really without much discussion but by unspoken agreement. So far those facts were hardly in dispute. You lay on her bed in her cabin and whilst you were there she went into the en suite bathroom to take off her makeup and she changed into her pyjamas. She came out and got into the bed. There was a dispute on the evidence as to whether she went under the duvet rather than on top. Wherever she went she got into bed with you. She asked you to turn out the light and she allowed you to remain when you asked if you could stay the night despite the fact your cabin was but a few doors away.

So just pausing there the Board accepted that at that stage you believed there might be further consensual sexual activity and they found that you had some justification in such a belief. Thereafter the Board found that MA [T] fell asleep for a period of time. They found that you believed that you might persuade her into further consensual activity by arousing her. The Board was not satisfied that MA [T] had said no as she had alleged she had when you were on the bed together. This is an important factor when it comes to assessing the appropriate sentence in this case. You touched her, the Board noted that you did not at that stage indulge in any foreplay but went straight to touch her vagina with your fingers and you penetrated her vagina. The next part of this is important as well. The Board was not sure that you did not believe that she was consenting but it was sure that any belief you may have held that she was consenting was unreasonable. I say that again because it is a difficult sentence. The Board was not sure that you did not believe that she was consenting, but it was sure that any belief you may have held that she was consenting was unreasonable, and that is the reason why you were convicted. You penetrated her vagina with your fingers briefly before she woke and she pushed you off. You stopped at once, you left the cabin. You apologised for what you had done during a series of texts."

6. The appellant was a man of good character, who was, in the view of the Board, sexually somewhat inexperienced and naive.
7. It is the appellant's case that within those sentencing remarks is revealed an error which makes the conviction unsafe. It is submitted, on behalf of the appellant, that no reasonable Board, having reached the conclusion that the appellant believed, or may have believed, that the complainant was consenting, could have gone on to conclude that such a belief was unreasonable.
8. Before looking at that argument we should address an argument made to us by Major Bashir, on behalf of the respondent, to the effect that we ought not to be looking at the sentencing remarks at all. He submits that it is well-established that a jury should not be asked to explain their verdict, because, so he submits, "it may only serve to lead to confusion". In the same way he submits that if this had been a jury trial one would not have had the reasons which are now set out in the sentencing remarks. He did accept that if the sentencing remarks showed that a gross error had been committed by the convicting board, then this court would be entitled to intervene.
9. We take the view that the sentencing remarks are quite clearly giving the reasons why the Board found the appellant guilty. If those reasons reveal an error, then it must be right for this court to intervene. We reject Major Bashir's argument.
10. Mr Norris, for the appellant, points to a number of findings of fact. After their arrival at HMS Nelson, on the Sunday before the offence, the complainant and the appellant had kissed for a couple of minutes and that kissing was initiated by the complainant. No more than about 24 hours before the alleged offence, the complainant came into the appellant's cabin during the late afternoon. The two of them talked and the talk turned to sexual matters. At the instigation of the complainant, they had both kissed and engaged in what the Board described as "mutually consensual sexual touching": the appellant touching the complainant's vagina and the complainant touching his penis. That came to an end after a few minutes, again by consent. At that stage the appellant was wondering where the relationship might go, and whether there might be further consensual sexual activity.
11. The Board then describes the events of the Thursday evening, including the amount of drink consumed. As to what happened after they arrived back at HMS Nelson, the Board said:

"You arrived back in NELSON, you went to her cabin and the Board found this happened really without much discussion but by unspoken agreement."

The Board said, in relation to what happened immediately thereafter, the facts were hardly in dispute. The appellant lay on the complainant's bed in her cabin and whilst he was there she went into the bathroom to take off her makeup and change into her pyjamas. She came out and got in or on the bed.

12. The Board points out that there was dispute as to whether she went under the duvet or on top: a dispute which the Board does not resolve. It was the complainant who asked the appellant to turn out the light and in the words of the Board:

"...she allowed you to remain when you asked if you could stay the night despite the fact your cabin was but a few doors away."

13. The Board accepted that at that stage with the lights out the appellant "believed there might be further consensual sexual activity". The Board went on to say that in their view the appellant had some justification for such a belief.
14. The directions given by the Judge Advocate to the Board before conviction show that it was the prosecution's case that the complainant had made it clear that she was not interested in any sexual activity and that she had fallen asleep only to wake up to find him touching her vagina. As the Board were told by the Judge Advocate in his directions, if the Board was sure that the appellant knew that the complainant was asleep, then the prosecution would have proved the element of the offence since he would not have believed that she was consenting.
15. The Board found that she had fallen asleep. They also found that the appellant believed that he might persuade her into further consensual activity by arousing her. Most important is the next sentence:

"The Board was not satisfied that [T] had said no as she had alleged she had when you were on the bed together."

16. It follows that an important plank of the prosecution's case (that she had made her views known) was found not to have been proved to the relevant standard. The Board then refers to the absence of any foreplay, a remark criticised by Mr Norris who says what did happen could properly be regarded as foreplay.
17. The sentencing remarks then read on as follows:

"The Board was not sure that you did not believe that she was consenting."

18. It followed, contrary to the prosecution's case and in the light of the direction that had been given, that the Board must have reached a conclusion that the appellant believed or may have believed the complainant to be awake. Notwithstanding that, they went on to find, as one can see in the sentencing remarks, that his belief that she was consenting was unreasonable.
19. We asked Major Bashir to explain how the Board could reach the conclusion that the appellant believed or may have believed that she was consenting, and also the conclusion that that belief was unreasonable. If the appellant believed or may have believed that she was not asleep then, in the light of all that had happened, how could the belief that she was consenting be unreasonable?
20. Major Bashir could not explain how the Board could properly have reached the conclusion that the belief was unreasonable. Nor can we. In those circumstances we have no doubt that the decision which the Board reached was one which they could not have properly reached. For these reasons we allow the appeal, and we quash the conviction.