England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS MARTIAL APPEAL COURT
ON APPEAL FROM A COURT MARTIAL HELD AT
THE BRITISH FORCES GERMANY MILITARY COURT CENTRE
Judge Large, Assistant Judge Advocate General

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/10/2011

Mr Justice Holroyde:

1. This is an appeal by leave of the single judge against sentences of a court martial reducing the Appellant in rank.
2. On 23.09.09 the Appellant, a Sergeant in the Royal Electrical and Mechanical Engineers, was involved in a minor road traffic accident at a British Army barracks in Germany. He failed to stop at a junction, and the Vauxhall car which he was driving collided with a fellow-soldier who was riding a bicycle. Fortunately, the accident resulted in only minimal injury and damage: the injured cyclist ultimately made a total claim amounting to less than 250 euros, which was paid by the Appellant. The Appellant was seen by Military Police officers only an hour or so after the accident. The Vauxhall which he had been driving was parked outside his house, its bonnet still warm. It appeared to the officers that it was a minor incident which would be settled through insurers, and no action was taken at that stage.
3. However, it subsequently emerged that the insurance on the Appellant's car had been cancelled more than 5 years earlier, in January 2004. Since then the Vauxhall had not been insured, with the obvious consequence that there would have been no insurance cover to meet the claim if the cyclist had been more seriously injured than he was. Further, since 2004 the car not been registered with the British Forces Germany ("BFG") Vehicle Licensing Office. The importance of such registration is that the German authorities, as host nation to the British forces stationed in that country, delegate to the Ministry of Defence the responsibility for ensuring that vehicles driven upon the German roads by British military personnel are properly maintained, insured and tested. The Ministry of Defence in turn enforces the requirements through Standing Orders. The matter therefore became much more serious than it had at first appeared.
4. Unfortunately, the Appellant then falsely claimed that at the time of the accident he had been driving a different car, belonging to his friend Mr Fordham. He said that he had not driven the Vauxhall since January 2004, asserting that it had been undriveable since the engine failed at that time, and that it was stored at his uncle's garage. He denied that the Military Police officers had seen the Vauxhall outside his house on the day of the accident.
5. Mr Fordham was contacted. He said he had not been in Germany on the relevant date and therefore had not loaned his car to the Appellant that day. That evidence was put to the Appellant: he still maintained that he had been driving Mr Fordham's car.
6. The Appellant was then charged on 15^th September 2010 with three offences of breaching Standing Orders, contrary to s36 of the Army Act 1955. The offences related to his driving without insurance, driving a vehicle which was not registered with the BFG Vehicle Licensing Office, and contravening the stop sign. All three charges related solely to the date of the accident. At a court martial hearing on 13^th October 2010 he pleaded not guilty to all charges, and the case was adjourned for trial. However, on 2^nd February 2011 he entered guilty pleas, and the case was adjourned to 24^th February 2011 for sentence.
7. There was before the sentencing court martial a pre sentence report, in which the Appellant was to say the least ambivalent about any acceptance of guilt: despite the guilty pleas which he had by then entered, he had initially told the author of the report that he was driving a friend's car on the relevant day, though in response to a later specific enquiry he admitted it had been his own car. There was also before the court a testimonial from the Appellant's superior officer, which commented favourably on some aspects of his performance of his military duties but less favourably on other aspects.
8. The Appellant was born on the 17^th June 1973, and so is now aged 38. He comes from a military family, and enlisted in the Army in August 1989. In addition to his service in Germany, he has served in, amongst other places, Northern Ireland and Iraq. He is due to retire on 17^th June 2013.
9. The Appellant has one relevant previous conviction, for driving with excess alcohol in January 2005. That offence was also committed in Germany. The Judge Advocate in his sentencing remarks said that it also involved the same Vauxhall vehicle, but Brigadier McEvoy for the Respondent very fairly told this court that he was not aware of any evidence to that effect. We therefore proceed on the basis that that offence did not involve the same vehicle.
10. Having heard mitigation the court martial ordered that the Appellant be reduced in rank from sergeant to corporal. In giving their reasons, the Judge Advocate made clear that the court was fully conscious of the financial consequences for the Appellant of such a reduction in rank. In the circumstances of this case the Appellant will not suffer any loss of pension, but there is a considerable difference between the pay of a sergeant and the pay of a corporal. It appears that inaccurate figures were inadvertently given to the court, and that the true loss of income attendant upon that reduction in rank is not as great as the court was told; but we do not think that anything turns on that, because the correct figure for the loss in the period until retirement is £8,742, which on any view is a substantial sum and well in excess of the fine which might be imposed in a civilian magistrates court for comparable motoring offences.
11. In explaining the reasons for the court's decision, the Judge Advocate observed that military personnel who break the registration requirements to which we have referred affect the relationship which the British forces in Germany have with their host nation, and place in jeopardy some of the privileges which accompany the registration procedure. He pointed out that as part of the lying defence which the Appellant had put forward, and maintained for some months, he had involved two innocent civilians, Mr Fordham and his uncle. He had persisted in his lies even to the author of the pre sentence report. The Judge Advocate concluded:

"So this is far from a standard offence. The aggravating features are the failure to BFG register or insure your car over a long period and your consistent and persistent lies thereafter told by a person of the rank of Sergeant. We have borne in mind throughout our discussions and deliberations that we must sentence you for the offences which you committed and admitted, but it does seem to us that we are entitled to take these factors into account … "

12. On the Appellant's behalf, counsel Mr Nicholas Bleaney submits that the sentences were wrong in principle and manifestly excessive. He points out that the Guidelines on Sentencing in the Court Martial indicate an entry point for minor breaches of Standing Orders of a fine or reprimand. He submits that the offences here were no more than minor breaches, that it would be wrong to treat the Appellant as having driven without insurance on any date other than the day of the collision, and that the court gave undue weight to the lateness of the guilty pleas rather than to the offences which were admitted.
13. The Guidance on Sentencing in the Court Martial to which counsel referred is published by the Office of the Judge Advocate General. The latest edition is dated October 2009. Paragraph 2.11 accurately summarises the effect of section 259 of the Armed Forces Act 2006: the court martial must have regard to any guidelines issued by the Sentencing Guidelines Council (now the Sentencing Council), but is permitted to depart from those guidelines "if in its opinion the departure is justified by any features of service life or of the service disciplinary system that are relevant to the case". Paragraph 2.15 states that the court when sentencing "will always take account of the rank of an offender, and normally the higher the rank the greater the degree of culpability". As to the penalty of reduction in rank, paragraph 3.6.1 refers to the loss of income which will result. Importantly, paragraph 3.6.2 then says this:

"It is, however, wrong to consider this punishment in purely financial terms. A reduction in rank is also a reduction in responsibility and status – the latter point being very important as it remains a visible indication of conviction, and may include a change in messing and accommodation arrangements. The important question when the Court Martial is considering this punishment is whether the offender by committing this offence has demonstrated that he is unfit to hold his present rank. Whether he is reduced to the ranks or allowed to retain some lesser rank than his present one will depend on how seriously the court views his conduct, and the mitigating factors."

14. With that guidance in mind, the Judge Advocate in his sentencing remarks said this at p13:

"Taking into account the facts of your case, your lack of remorse as we perceive it, the limited discount available for a guilty plea, that we consider that this case is so serious that a reduction in rank is necessary; your conduct fell far below that which was expected of a senior non-commissioned officer who are there to set an example, follow orders and uphold discipline … In coming to that conclusion we have considered carefully the financial implications of the sentence that is going to be passed. Reduction in rank from Sergeant to Corporal is a significant disciplinary punishment. It has significant consequences in loss of status and income. But those consequences flow from your conduct, so whilst we acknowledge that the loss of income between now and your retirement amounts to a large sum of money, it is a direct consequence suffered by all who are reduced in rank from Sergeant to Corporal. Calculations of lost income whilst instructive do not drive sentencing policy. If they did, very few people would ever be reduced in rank."

15. In R v Love (97/5188/S2), this court considered for the first time the nature of an appeal against a sentence imposed by a court martial. Simon Brown LJ, giving the judgment of the court, noted (at p4) that the sentences which a court martial can impose are in many cases different from those available to civilian courts. He observed (at p5) that a court martial sentence is concerned at one and the same time to achieve two things: "First, to punish service personnel for the criminality of their conduct; second, to deal with them also on a disciplinary basis". Those were important considerations when determining the approach of this court to such an appeal. Simon Brown LJ then expressed the court's conclusion as to the correct approach in these terms (at p6):

"In the present class of appeal, therefore, it seems to us that this court is exercising a somewhat hybrid jurisdiction, and that whilst we are free and clearly intended by Parliament to correct any injustice which we perceive in a court-martial sentence, we must nevertheless be mindful that those imposing and confirming such sentence are, generally speaking, better placed than we are when it comes to assessing the seriousness of offending in the context of service life, and deciding upon what particular penalty is required to maintain the discipline and efficiency of the armed forces".

16. Similarly, giving the judgment of this court in R v Glenton [2010] EWCA Crim 930, the Lord Chief Justice said this at para 19:

"… we have reminded ourselves that the Court Martial is a specialist criminal court. That does not mean that we accept blindly the decision of the Court Martial, but we must attach due respect to a court which is designed to deal with service issues."

17. We note in passing that R v Wright-Stainton [2011] EWCA Crim 2131 provides a recent example of a case in which the circumstances were exceptional, and this court did vary a sentence imposed by a court martial, notwithstanding those considerations.
18. We have considered carefully the circumstances of this case. We accept Mr Bleaney's submissions that the road traffic accident was in itself a minor incident, that there was no charge of failing to stop after an accident, and that there was no charge of attempting to pervert the course of justice. We therefore sought the assistance of Brigadier McEvoy's submissions as to the factors which the court martial could properly take into account. As we have already indicated, it is conceded by the Respondent that there was no evidence to support the view of the court martial that the motoring offence of which the Appellant was convicted in 2005 had involved the same Vauxhall vehicle, and there was therefore no basis for treating the Appellant as having previously driven without insurance. That previous conviction does however mean that the Appellant cannot be viewed as a man of previous good character so far as motoring matters are concerned. Moreover, the requirement of BFG registration applies whether or not the vehicle is being used on the roads, and the Appellant admitted that the Vauxhall had not been so registered since January 2004. It was therefore proper for the court martial to take into account that there was a background of a prolonged failure to register.
19. The conclusion of Brigadier McEvoy's submissions, with which we agree, is that it was the Appellant's conduct in persistently lying about his guilt, and in naming innocent civilians as part of that lie, which had led the court martial to conclude that a financial penalty was insufficient, and that reduction in rank was the appropriate sanction.
20. We have therefore asked ourselves whether the court martial was wrong in principle to take that conduct into account. In our judgment, there was no error of principle. We of course accept Mr Bleaney's submission that in the ordinary way, lying about the commission of an offence does not make the offence itself any worse. We also accept his submission that if these offences had been dealt with before a civilian court, neither the fact that the offender had told lies, nor the fact that he had denied his guilt and put the prosecution to considerable trouble and expense in preparing to prove the charges against him, would be a reason for increasing the appropriate financial penalty. But this was a court martial concerned not merely with criminal guilt but also with the disciplinary aspect of the Appellant's conduct. It must be remembered that within the closed community of the barracks, there would be likely to be widespread knowledge of the prosecution and of its outcome. As the Judge Advocate said in the passage which we have quoted at paragraph 14 above, the Appellant as a senior non-commissioned officer was expected to set an example, obey orders and uphold discipline. Regrettably, he did none of those things. Instead of accepting the full extent of his breaches of Standing Orders he had over a period of months put forward a dishonest account, in the course of which he had named and to that extent involved two innocent civilians. He had also denied the truthful and accurate evidence of the Military Police officers. In short, far from setting a good example, he had set an extremely bad example.
21. We cannot accept Mr Bleaney's submission that the wording of paragraph 3.6.2 of the Guidance on Sentencing, which we have quoted at paragraph 13 above, restricts the court martial to a consideration only of the facts which constitute the crime itself. The reference to a consideration of "how seriously the court views [the offender's] conduct" extends, in our judgment, to the conduct of the offender in connection with the offence. It follows that in our judgment, the court martial was entitled to take into account not only the bare facts of the offences themselves, but also the subsequent conduct of the Appellant in connection with the offences. It was entitled to do so, not because the subsequent conduct made the offences themselves worse, but because it bore directly on the issue of whether the Appellant had shown himself unfit to hold his rank.
22. We accordingly turn to consider Mr Bleaney's alternative submission that the sentences were manifestly excessive. Again, we cannot accept the submission. There is in our view a very substantial difference, so far as good order and military discipline are concerned, between a senior NCO who accepts full responsibility for his breaches of Standing Orders, and a senior NCO who (to put it bluntly) engages in a prolonged attempt to lie his way out of trouble. We can well understand why the court martial felt it would be inimical to military discipline to allow such conduct to escape any significant sanction, and concluded that the Appellant had indeed shown himself to be unfit to continue to hold his rank. What example would be set to the men under the Appellant's command if the court martial did not mark the seriousness of the disciplinary aspect of his conduct? In our judgment the court martial was entitled to conclude that a fine would not be a sufficient penalty and that the appropriate sanction was one of reduction in rank.
23. For those reasons, notwithstanding Mr Bleaney's helpful submissions, we conclude that the sentences imposed below were neither wrong in principle nor manifestly excessive. We do of course recognise that the consequences for the Appellant are heavy; but the unfortunate reality is that he has brought those consequences upon himself. This appeal is accordingly dismissed.