England and Wales Court of Appeal (Criminal Division) Decisions

COURT MARTIAL APPEAL COURT
COURT MARTIAL IN COLCHESTER
ASSISTANT JUDGE ADVOCATE PETERS

		2010/05849/D5 Royal Courts of Justice Strand, London, WC2A 2LL
		

The Lord Chief Justice of England and Wales:

1. On 16 September 2010, at a Court Martial held in Colchester before Judge Peters, Assistant Judge Advocate and a five member constitution, Flight Lieutenant Timothy Twaite RAF was convicted by a majority decision (4-1) of committing a civil offence contrary to section 70 of the Air Force Act 1955, namely "fraud by false representation contrary to section 1 of the Fraud Act 2006".
2. The particulars of offence alleged that on 18^th June 2008, he dishonestly made a representation to Defence Estates which was or which he knew might be untrue or misleading, namely that he was due to be married on 29 August 2008 and that he was thereby entitled to service families accommodation, in breach of section 2 of the Fraud Act 2006.
3. The representation was contained in an application form dated 18^th June 2008 for service family accommodation, being sought as an entitlement on the basis of his impending marriage on 29^th August 2008. The application was granted. The service family residence was occupied by him on 27^th August. He did not in fact marry until a year later on 29^th August 2009. Throughout the 12 month period between taking up occupation of the accommodation and the actual date of the marriage nothing was said to the relevant authorities about the fact that the marriage had not taken place. However there was no further or alternative allegation, alleging contravention of section 3 of the Fraud Act after 29 August 2008, a feature of importance to the present case.
4. Flight Lieutenant Twaite has sought leave to appeal his conviction. He was represented before this court by Mr Mark Hill QC, together with Mr Jonathan Simpson who had acted for him in the Court Martial.
5. The finding of the Court Martial has been referred the Court Martial Appeal Court by His Honour Judge Blackett, the Judge Advocate General Given the points of law identified by the Judge Advocate General it is plain that leave should be granted. The points of law identified by the Judge Advocate General read as follows:

1. Is a finding of guilt by a simple majority of a Board of 5 or more lay members in the Court Martial in a case where the defendant is in jeopardy of a significant sentence of imprisonment, as provided by the statute, inherently unsafe?

2. Is a defendant deprived (of) his right to a fair trial under ECHR Article 6 where he can be found guilty of a serious offence (within the ambit of schedule 2 of the Armed Forces Act 2006 and any other offences where the maximum sentence is 7 years or more imprisonment) by a simple majority thereby placing him in jeopardy of a significant sentence of imprisonment?

3. If the answer to (2) is in the affirmative, will the Court Martial Appeal Court make a declaration of incompatibility in relation to the Armed Forces Act 2006 (s160 (1)), so far as it relates to the Armed Forces Act schedule 2 offences and any other offences with a maximum sentence of 7 years or more imprisonment.

4. Where during sentencing proceedings in the Court Martial the judge discovers that a finding of guilt by the Board of lay members was wrong in law, and decides to terminate those proceedings under the Armed Forces (Court Martial) Rules 2009 r 25 (3), how should the conviction be referred to the CMAC so that the finding can be quashed?

5. If a finding is quashed in these circumstances, may the defendant be subjected to re-trial on the same or a different charge?

The Facts

6. Perhaps the starting place for examining the problems which have arisen in the context of what was otherwise an apparently straightforward case of alleged dishonesty is the moment when the prosecution notified the defence that it intended to advance the allegation against the appellant on the basis that, although he had made a false representation that he was to be married on 29^th August 2008 when he submitted his application on 18^th June 2008 for Service Family Accommodation, the Crown was also alleging that his subsequent representations were dishonest. The charge was based on the documentation dated 18^th June, but there were a number of further relevant documents relating to the period before 29^th August 2008 which were produced in evidence before the appellant actually moved into the accommodation. When the issue was raised with the Judge Advocate she was concerned that the prosecution had not included an alternative charge based on the alleged failure by the appellant to disclose the true facts after 29^th August 2008, when he had not married, but was nonetheless living in the accommodation with his fiancée in breach of the Tri-service Accommodation Regulations. She invited counsel for the appellant to consider whether he wished further time for the purpose of preparing his case. He did not. In the course of the hearing counsel on behalf of the appellant said:

"I accept that the prosecution are entitled to cast their net wider and in any event my client will be dealing with events over many months and he is not trying to seek acquittal simply on the basis of what the Board felt he was doing on a particular day".

7. Later in the hearing the question whether the Court Martial should be provided with a written route to verdict was discussed between the Judge Advocate and counsel. At the conclusion of the evidence she drafted a series of questions for discussion with counsel. And, in due course, after giving entirely appropriate directions to the Board, the Judge Advocate summarised the route to verdict in this way:

"Question 1. Are you sure that when, on the 18^th June, 2008, the defendant made a representation that he was to marry on the 29^th August that he intended the recipient of that representation to believe that he was referring to the 29^th August 2008?

That is the first question that you will have to address yourselves to,…if your answer to that question is yes, you are so sure, then you will go to question 3 under dishonesty. But if your answer to that question is no then you will go to question 2.

Question 2. Are you sure that at some time between the 18^th June 2008 and on or shortly after moving into the address on the 27^th August 2008, the defendant realised that the representations he had made, namely that he was to marry on the 29^th August 2008 had become untrue or misleading?

If your answer to that question is yes, then again go to question 3. If your answers to both questions 1 and 2 have been no then you should find the defendant not guilty."

The remaining questions identified on the route to verdict have no bearing on the present appeal.

8. The Judge Advocate added that it was "very important",

"that you note that if a minority of you were to answer yes to question 1 and a different minority of you were to answer yes to question 2 that would not suffice. That would not be right to add those two minorities together to make a majority. You can only convict if you have a majority who answer yes to one or other of the questions. I hope that is clear. Alright. If you have answered yes to one or other of those questions then you will have turned to question 3, which is the issue of dishonesty."

9. At the end of her summing up the Judge Advocate directed the Board that, having considered the arguments and speeches they had heard, and the views expressed in their deliberation by other members of the Board, it was obviously "preferable" that the Board should come to a unanimous decision, but that the laws relating to Courts Martial permitted the Board to reach a majority verdict. Having emphasised as strongly as she could that the Board should strive very hard to reach a unanimous decision if they could, she accepted that if that was not possible, a majority would be acceptable.
10. The Board retired. The precise sequence of events thereafter takes this hearing no further, but in due course the Board returned and, in answer to questions by the Judge Advocate, reported that the majority verdict was that the defendant was guilty on the basis of their answer to question 2. That seemed to be that.
11. The case was adjourned for a pre-sentence report. When it was relisted on 30^th September, there was a further discussion between the Judge Advocate and counsel for the appellant about how, given the basis on which he was convicted, mitigation should be advanced to the Board. Towards the end of the discussion the Judge Advocate raised the question whether, in accordance with what would have happened in the context of a majority verdict in the Crown Court, she should ascertain how many of the members of the Board agreed with the verdict, and how many dissented. She recorded that she accepted that "The procedure guide does not specifically require me to do so but the…Court Martial Rules do say that where there is no rule one should follow the Crown Court as closely as possible and it seems to me that that would be asked in the Crown Court in these situations and, therefore, I would like to ask it here too".

Her reference was to Rule 26 of the Armed Forces (Court Martial) Rules 2009 which provides:

"Subject to any other enactment (including any other provision of these Rules) the judge advocate shall ensure that proceedings are conducted –

(a) in such a way as appears to him most closely to resemble the way in which comparable proceedings of the Crown Court would be conducted in comparable circumstances; and

(b) if he is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstance, in such a way as appears to him to be in the interests of justice."

12. When the question was posed to the President, he responded that 4 agreed with the verdict and one dissented.
13. Evidence was offered in mitigation. Submissions were made on behalf of the appellant. The Board retired to consider sentence. Entirely in accordance with the rules which govern Court Martials, the Judge Advocate retired with the members of the Board. The Judge Advocate returned to court after about 45 minutes and began by observing that she was "disturbed by the conversations I am having with the Board". She said that she had looked at question 2 of the routes to verdict and was reminding herself of the words in question 2, "or shortly after".
14. The Judge Advocate expressed herself concerned that "the basis on which they had convicted the defendant is that they have concluded that on 29^th August, when he did not get married, he then should have done something about it." In other words, the discussion suggested to her that the Board was satisfied that the appellant's criminality began on or after 29^th August and arose from his failure to draw the attention of the authorities to the fact that he had not married on that date. When she questioned this approach, the Board pointed to the phraseology in question 2 which included the words "or shortly after". Her concern was that the Board seemed to have convicted the defendant on a false premise, and she added that if there been a section 3 charge they "probably" would have convicted him of that, but they did not because there was none.
15. She then reflected on the rules to establish whether, acting as Judge Advocate, she might terminate the proceedings if she considered it in the interests of justice to do so. She indicated an intention to exercise her powers under rule 25 to terminate the proceedings, and recorded her view that this would mean that the conviction could not stand and the Crown would have to consider whether to bring fresh proceedings. She heard submissions from both sides. She told Major Richards that what was disturbing her in the context of what she had discovered from her discussions with the Board was that "had they been properly directed, … had they properly considered the issue on the charges you put to them they would have acquitted this defendant". After a protracted discussion with counsel, the Advocate General invited the Board into court and informed them that she had decided to exercise her powers under rule 25 of the Armed Forces Court Martial Rules 2009 to terminate the proceedings in the interests of justice, adding that the court was dissolved, and the proceedings "are as if they have never taken place".
16. The hearing resumed a few days later. The position taken by the prosecution was that there was a guilty verdict on the record, and that the appropriate course was therefore for the matter to be considered by the Court of Appeal. The mechanisms were then addressed. After considering the arguments, the Judge Advocate reserved her judgment, and in due course she provided a written judgment explaining the reasons for referring the case to the Judge Advocate General, with a recommendation that he should exercise his powers under section 34 of the Court Martial Appeals Act 1968.
17. Effectively the written judgment repeated what the Judge Advocate had said in open court on 30^th September. The reason for leaving question 2, or a question in similar form to question 2, to the Board was that "it seemed common ground that the act of moving into the house could constitute a continued false representation but that thereafter there had been mere silence which appeared to be more appropriately put as a failure to disclose (s 3) than a false representation (s 2)". In the course of preparing the route to verdict she had agreed with defence counsel to add the words "and shortly after moving into the address" but with the benefit of hindsight, the inclusion of these words was an error, which thereafter contributed "to the confusion the Board appeared to suffer". She added that at the end of the trial, after the appellant was recalled, he produced a number of receipts relating to his wedding plans one of which showed that he had collected his wedding ring from a shop on 28 August 2008, and given this evidence, as she explained, "it was to transpire that that evidence proved crucial to the Board in their conclusion that it was only on the 29^th August that they were sure that the defendant had realised that he would not in fact be marrying that day and that was the first time that they were sure that he had acted dishonestly". The Judge Advocate concluded that findings like these were potentially consistent with a verdict of guilty of a failure to disclose under section 3, but not on the basis of a false representation under section 2.
18. The Judge Advocate was in a considerable personal difficulty because informed as she was of these matters she could not see how she could proceed to participate in sentencing a defendant who, should in her judgment, have been found not guilty. So she decided to make the parties aware of what had come to her knowledge, and that it would not be "proper" to proceed to sentence. That was why she had decided to terminate the proceedings. The Crown, while fully understanding her problem, submitted that she was functus officio and could not terminate the proceedings, an order which in effect purported to set aside the verdict of the Court Martial. When her attention was drawn to the decision in Laming [1990] 90 CAR 450 the Judge Advocate explained that had she known about that authority at the time (and no one, least of all the Judge Advocate herself is to be blamed for not having been aware of it at the time) she would have "hesitated" to exercise the terminating power in rule 25 (3), although she added that, because of the drafting of rule 25, the matter was not beyond doubt.
19. The Judge Advocate referred the problem to the Judge Advocate General and thus it is that he has referred the five questions set out in paragraph 4 for the decision of this court, and that the appellant challenges the safety of his conviction.

The Questions of Law

20. The first three questions raised by the Judge Advocate General concern the majority verdict. Mr David Perry QC as amicus, advanced for consideration whether a conviction for a serious offence returned by a bare majority should be treated as unsafe, on the basis that a majority verdict dispenses with consensus, involves an over-riding of the views of the minority which itself suggests there are objective grounds for the existence of a reasonable doubt of guilt. For present purposes we are presumably invited to assume that an acquittal on the basis of a majority decision does not engage any of these considerations.
21. The starting point is the clear language of section 160 of the Armed Forces Act 2006 (the 2006 Act). This provides so far as material,

"(1) subject to the following provisions of this section, the finding of the Court Martial on a charge…must be determined by a majority of the votes of the members of the court…(3) in the case of an equality of votes on the finding, the court must acquit the defendant."

22. This is not new legislation. Its predecessor, so far as the Royal Air Force is concerned, was section 96 of the Air Force Act 1955, which again provided for majority decisions at Court Martial: so did the Army Act 1955 and the Naval Discipline Act 1957. The 2006 Act was enacted after a number of concerns about the processes involved in courts martial were expressed both in the House of Lords and in the European Court of Human Rights. None of these concerns was directed at the principle of majority verdicts. It was enacted at a time when the legislation which permitted a jury in the Crown Court to return majority verdicts was well established in accordance with section 17 of the Juries Act 1974. Any problems about majority verdicts in the context of courts martial could and would have been addressed in the 2006 Act. We must assume that none was identified.
23. Our attention was drawn to comparative studies about the way in which majority verdicts are permitted to operate in different systems for the administration of criminal justice, but it is perhaps of more significance within our jurisdiction that the majority verdict arrangements at courts martial are not isolated. Magistrates Courts, and appeals to the Crown Court against decisions by magistrates, are dealt with in exactly the same way. The court seeks to reach a unanimous verdict, but if members of the court cannot conscientiously do so, a majority verdict (whether for conviction or acquittal) is acceptable. Although we recognise the difference between the sentencing powers of the Magistrates Courts, whether sitting in their own courts or on appeal in the Crown Court, and the sentencing powers available to courts martial, the present arrangements in the Magistrates Court, where the overwhelming majority of criminal cases are tried, demonstrate that as a matter of principle majority verdicts are not on that account alone to be regarded as blemished by unfairness or uncertainty or lack of safety. This process has been long established without having been called into question.
24. The Court Martial system has been subjected to close scrutiny in the last decade or so, both here, and in Strasbourg. It is illuminating that, as with Magistrates courts, it has not, as far as we can discover, yet been suggested either on behalf of any appellant or by any court that the arrangements by which majority verdicts are accepted constitutes a breach of a defendant's right to a fair trial under article 6. Thus, in R v Spear [2003] 1 AC 734 it was contended by the defendants that a trial by Court Martial in the United Kingdom of an offence against the ordinary criminal law was incompatible with article 6(1) of the Convention. The appeals were dismissed. Such trials were not incompatible with the right to a fair hearing by an independent and impartial tribunal. The issue of majority verdicts was expressly highlighted, without adverse criticism or comment, in the speech of Lord Rodger of Earlsferry, where he recorded that the verdict was reached by a vote in which the defendant was open to conviction on the basis of a simple majority.
25. In Cooper v United Kingdom (application number 48843/99) (2204) 39 EHRR 2, Cooper was convicted by a district court martial of theft. He complained that his trial was not fair, in particular because the tribunal was neither independent nor impartial. The Grand Chamber recorded, again without adverse criticism or comment, that decisions on verdict and sentence are reached by a "majority vote….the casting vote on sentence, if needed, rests with the President…"
26. In R v Martin [1998] AC 917 the question raised on appeal was whether a civilian aged 17 could properly be tried before a Court Martial in Germany. The House of Lords considered the point of law of general public importance whether "proceedings by way of a court martial regularly constituted and conducted according to the provisions of the Army Act 1955 may nevertheless be stigmatised as an abuse of process". The short answer was that a form of trial approved by Parliament could not constitute an abuse of process. It is significant that the argument on behalf of the appellant was directed, among other criticisms, to the fact that before a court martial he might be convicted by a simple majority and that therefore he should have been tried by judge and jury. So the majority verdict question was directly engaged. Nevertheless the appeal was dismissed. The same case was heard before the European Court of Human Rights as Martin v United Kingdom [2007] 44 EHRR 31. The Court found that the court martial had not constituted an independent or impartial tribunal, following its earlier decisions in Findlay v United Kingdom [1997] 24 EHRR 221. It was open to the European Court to offer criticisms of the majority verdict arrangements which apply in courts martial. None was.
27. We are unable to accept Mr Perry's submissions. As in this case, the Board is directed if at all possible to reach a unanimous verdict, but it is not obliged to do so. Each member of the Board (whether it is a three member, or five, or even larger Board) is conscientiously reaching the decision which he or she believes to be right in the context of the evidence, and the discussion between the members. This involves addressing and evaluating the arguments of those who suggest that there may be a reasonable doubt about guilt. The same applies in reverse. That is the point of the discussion. If at the end of the discussion, a member of the Board believes or is persuaded that a reasonable doubt about guilt exists (so that he or she cannot conscientiously agree to a guilty verdict) it does not follow that a guilty verdict returned by the majority who are, notwithstanding all the contrary arguments, convinced of guilt, should be regarded as unsafe. It does not occur to us to conclude that a guilty verdict on the basis of a 10-2 majority by the jury is open to question because two of its members entertained reservations about guilt. Equally, where a jury cannot conscientiously achieve a verdict even on the basis of 10-2, it does not follow that there must be a doubt about guilt: a hung jury produces a re-trial, and if the second jury convicts, no one suggests that the verdict is unsafe because in the earlier trial at least three members of the jury (and it may well be more) were unable conscientiously to agree that guilt was proved.
28. Mr Philip Havers QC for the Secretary of State identified a wide range of safeguards which were in place to guarantee the independence and impartiality of the members of a Board, and to ensure that each member of the Board would act in accordance with conscience, after careful reflection on every aspect of the case, including the views of his or her colleagues. We need not identify the further specific safeguards drawn to our attention by Mr Havers, or noted in the judgment of the Grand Chamber in Cooper at paragraphs 104-126 and indeed any of the other decisions which highlight these wide-ranging safeguards. They serve to produce a fair trial process.
29. There is no reason to conclude that a finding of guilt on a basis of a simple majority is inherently unsafe, or that there is an increased danger that it may be unsafe if, after conviction, the defendant may be sentenced to a substantial term of imprisonment. Equally we can see nothing in a process in which a verdict may be returned by a majority which infringes the right to a fair trial, or produces an unsafe conviction. The trial process is intended to be fair, and, as in this case, is demonstrably fair. The statutory provision is clear, and unassailable. Accordingly a declaration of incompatibility, even to the extent that section 160 (1) of the 2006 Act applies to schedule 2 offences within the Act, and any other offences carrying a maximum sentence of 7 years' imprisonment or longer would be inappropriate.
30. We have been asked by Mr Havers to consider whether it is appropriate for the question whether the verdict was unanimous or a majority verdict to have been asked or investigated at all. He suggested that no questions should have been asked of the Board which were not directed to ascertaining whether a verdict had been reached, and if so whether it was guilty or not guilty.
31. These problems arise for decision because the Judge Advocate General explained in his Reference that he introduced in November 2009 a "non-statutory policy whereby as a matter of practice the Judge Advocate always asks the Board on the record whether the finding on each charge was unanimous". The Guidance he issued in October 2009 advises Judge Advocates that the appropriate way to proceed in respect of each charge should be – the President of the Board is first asked to answer 'yes' or 'no' to the question the Board has reached a finding in respect of each charge upon which they are all agreed; if the response is 'yes', the President is asked to state 'guilty' or 'not guilty'; if the response is 'no', the President is then asked to answer 'yes' or 'no' to the question have the Board reached a finding upon which a majority are agreed; if the answer is 'yes', the President is asked to state 'guilty' or 'not guilty'. There is no requirement in the Guidance for any question of the Board, as asked by the Judge Advocate in the present case, as to the number who agreed and the number who dissented.
32. We immediately agree with Mr Havers' submission that for reasons which should need no explanation, it should never be known that a defendant has been acquitted by a majority decision. Consistently with the position which applies with jury verdicts, it is in our judgment wrong in principle for any request to be made of the Board which in terms identifies an acquittal by a majority or requires it to record voting figures when the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more members of the Board was convinced of his guilt.
33. Mr Havers advanced the further submission that it was inappropriate for any inquiry as to voting to follow the return of a guilty verdict. As the decisions in Cooper and Morris made clear, one of the important safeguards of the independence of the lay members of a Board is "the confidentiality of the deliberations, a point repeated in the member's oath": see paragraph 121 of the judgment in Cooper. Further, at paragraph 39, the court in Cooper emphasised that the deliberations of the Board are confidential and a member is forbidden to reveal any opinion or vote. We remind ourselves that magistrates announce their verdicts, without any investigation into the question whether they are unanimous, or not, and in the Crown Court on appeal from the Magistrates precisely the same rules apply. In short it does not follow from the fact that a guilty verdict may be returned by a majority of the court, that it is necessary or appropriate to seek to discover the answer to that question. Indeed when the 2006 Act itself confirmed the principle of majority verdicts at courts martial it did not equate the arrangements for such verdicts with majority verdicts in jury trials, which require both the fact and the voting relating to any majority guilty verdict to be publicly recorded. The Judge Advocate's reliance on Rule 26 (see paragraph 10 above) was misplaced. The verdict which is announced at the court martial is the verdict of the court.
34. In our judgment the first matter which must be ascertained is whether the Board has reached a verdict. If so the simple question which should then be asked is, "Do you find the Defendant guilty or not guilty". No further questions should be asked. The answer to that question is conclusive. There are no circumstances in which the way the individual members of the Board, or the way in which they voted, should be revealed.
35. The Guidance issued by the Judge Advocate General should be reviewed in the light of our conclusion.

The processes in the present trial.

36. After the verdict had been returned, the Judge Advocate discovered what she believed to be a flaw in the reasoning of the Board which undermined the safety of the conviction. She was in an impossible position. We understand why she decided that the case should not proceed, and that the appellant should not be in peril of sentence following a flawed conviction. She had, however, no power under the rules which gave her authority or jurisdiction to terminate the hearing. The verdict had been reached. Whatever the position which was by no means clear about the judge advocate and the president of the board signing a record of the findings in accordance with Rule 110(3) of the Armed Forces (Court Martial) Rules 2009, if that part of the process had not been concluded, she would never have been permitted, and she would not have sought, to enter into any discussion with the Board members on the sentencing issue. Her presence was only justified because the issue of guilt had been resolved. On this issue she was indeed functus officio. We need not address all the many rules drawn to our attention in the course of the argument. The processes open to the Judge Advocate were either to proceed to the sentencing decision, convene the Board in open session, and give a sentencing judgment along the lines adopted in R Stables [2010] EWCA Crim 2405 which would have revealed, as it did in that case, the flaws she had identified in the reasoning of the Board, or, again on the basis of a judgment on the lines she did give in this case, with an order that the sentence should be adjourned, pending any appeal by the defendant to this court. Such an appeal could have been put in train as a matter of urgency, and although the Judge Advocate is not entitled to certify that a point of law has arisen which merits attention on appeal, her judgment could have indicated that, if she had been possessed of the jurisdiction, she would have exercised it, for whatever reasons seemed to her to have been appropriate.
37. As it is, the appellant was convicted by a majority verdict. No one had the power to set that verdict aside except this court. We have examined the history of the case, in the light of the concerns expressed by the Judge Advocate. For the reasons set out in the narrative of the facts, it seems fairly clear that the appellant was convicted by the Board on the basis of post 29^th August 2008 dishonesty rather than dishonesty at any earlier stage.
38. Question 2 was equivocal, and although the Board was entitled to reach the verdict it did in the light of question 2, this was not apt to cover post 29^th August 2008 dishonesty. We therefore entertain the same reservations about the safety of this conviction which concerned the Judge Advocate. It must be quashed.

Section 19 (1) of the Courts-Martial (Appeals) Act 1968 enables us to order a new trial if the interests of justice require. In the end we concluded that as the new trial would have to be based on the only charge on which the appellant was convicted, and that it would not be open to amendment by the addition of further counts, and that it is a matter of record that the Board was not satisfied of his guilt before 29^th August 2008, it would be artificial to allow the prosecution to seek to prove the elements of the offence about which, at least in substantial part, as it appears, the Board was not satisfied. Accordingly we do not order a retrial.