England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
MILITARY COURT CENTRE, PORTSMOUTH (JUDGE ELSOM, ASSISTANT JUDGE ADVOCATE GENERAL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2014

Lord Justice Pitchford :

Introduction

1. The appellant, Price, appeals against conviction and sentence with the leave of the single judge. The appellant, Bell, applies for leave to appeal against sentence the application having been referred to the full court by the Registrar. We grant leave.
2. Before the Court Martial the appellants, together with Aaron Scott Davenport and Renaldo Dane Nelson faced a charge sheet containing 4 charges. In charge 1 the appellant Bell was charged that on 26 November 2011, contrary to section 15(2) of the Armed Forces Act 2006, he negligently performed his duty while handling a general purpose machine gun ("GPMG") thereby causing the unintended discharge of a round which occasioned the death of James Robert Wilkinson. Bell pleaded guilty on 21 January 2013 at the Military Court Centre in Bulford before His Honour Judge Blackett, Judge Advocate General.
3. In charge 2 the appellant Price was charged that on 26 November 2011, when he was safety supervisor on a live firing exercise, contrary to section 15(2) of the 2006 Act, he negligently performed his duty by failing to ensure the safe handling of a GPMG, which was in the possession or control of Colin James Bell, Aaron Scott Davenport and Ronaldo Dane Nelson, in that he did not properly supervise immediate action drills on stoppage, did not determine the nature of that stoppage and consequent safety state of the weapon, did not prevent the weapon being moved from its firing point thereby endangering others, and failed to alert Colin James Bell that he was pointing the unsafe weapon in an unsafe direction as Colin James Bell attempted to clear the stoppage of the weapon.
4. In charges 3 and 4 Aaron Scott Davenport and Ronaldo Dane Nelson were charged respectively with the negligent handling of the GPMG by informing Colin James Bell that the weapon was in a safe condition and by failing to alert Colin James Bell to the fact that the weapon was pointing in an unsafe direction as he attempted to clear a stoppage in the weapon.
5. Price, Davenport and Nelson pleaded not guilty and they were tried at the Military Court Centre, Bulford commencing 3 June 2013. At the conclusion of the prosecution case Judge Advocate Elsom ruled that Davenport and Nelson had no case to answer. They were discharged. The trial proceeded in the case of the appellant Price. On 14 June 2013 the Board made a finding of guilt.
6. On 11 July 2013 at the Military Court Centre, Portsmouth, Price was sentenced to a term of 21 months service detention and dismissal from Her Majesty's service. Bell was sentenced to 14 months service detention and dismissal from Her Majesty's service.

Appeal against conviction

Summary of evidence at trial

7. The circumstances giving rise to the appeal against conviction are as follows: the appellant Price enlisted in HM Forces in October 1987 when he joined the Royal Army Ordnance Corps. He worked as a clerk in various units, at regimental headquarters and in staff jobs. In November 2011 he was a staff sergeant, working as a financial systems administrator with the Scots Dragoon Guards stationed in Fallingbostel in Germany. Staff Sergeant Price gave evidence that he had undertaken weapons training in 1997 but had not before his tour of duty to Kenya in November 2011 undertaken any refresher training. He had no experience of GPMGs. He was informed on 2 November 2011 of his tour of duty to Kenya to take part in a training exercise in preparation for a further tour of duty in Afghanistan. Price travelled to Kenya on 8 November 2011. On arrival he was told that he would have responsibilities as a range safety supervisor. He raised concerns as to his lack of experience with his field commanding officer, Captain Reynard. On 10 November he was informed that permanent range team members would be embedded with various companies of the 2^nd battalion Royal Regiment of Fusiliers. On 12 November Captain Reynard gave a briefing to O Group, including Staff Sergeant Price, during which he learned that he would be attached to the Fire Support Group. On Sunday 13 November senior personnel were taken out to the ranges to assist company NCOs in safety supervision. A training session on the use of GPMGs was supposed to have been delivered by Corporal Bell, by common consent the local expert, but in his absence the training was postponed. On 14-16 November Staff Sergeant Price undertook a variety of duties acting as a member of the safety staff. On Wednesday 16 November, Fire Support Company went into non-live-training. Staff Sergeant Price took advantage of the down period to receive instruction in the basic skills of handling the GPMG. He gave evidence that it amounted to refresher training during which he was shown the immediate action drill, how to change a gas setting, how to cock the weapon and how to lift the top cover to determine the nature of any stoppage. During that training he did not fire the weapon. On 17 November Staff Sergeant Price took and passed the GPMG handling test. He gave evidence that by the time of the exercise in which the fatality occurred he felt confident to supervise the GMPG although he was not as fully aware of all the faults that could develop as he might have been.
8. On the weekend of 19 and 20 November Staff Sergeant Price and other safety supervisors received a briefing from Captain Reynard in which they were taken through the range action and safety plan ("RASP"). The RASP contained the allocation of duties to safety staff and specified the safety measures to be enforced by staff. Included was the instruction at page 5 paragraph 6(s) which dealt with the handling of a "hard extraction problem":

"If the weapon still fails to cock troops are to inform the nearest safety supervisor who will request an armourer. Troops are not to place the weapon system upright and kick the cocking handle."

Staff Sergeant Price confirmed in evidence that this instruction was delivered to him in the course of his training. Finally, on Sunday 20 November, he was introduced to and made familiar with the terrain in which the Ascari Centurion Exercise was to be conducted and supervised.

9. The exercise commenced on Monday 21 November. On Saturday, 26 November Staff Sergeant Price was acting as safety supervisor of a unit in which men were handling both GPMGs and SA80 assault rifles. Fusiliers Davenport and Nelson were operating a GPMG a matter of feet away from the appellant. Some metres to their left Fusiliers Urwin and Wilkinson were deploying a second GPMG. Between the two teams operating GPMGs was a rifleman, OTC Officer Cadet Duncan Carroll. Just to the rear of the soldiers operating weapons was Corporal Bell who was in immediate charge of the unit. On the left flank of the Urwin/Wilkinson GPMG was a manned, armoured all-terrain vehicle on which a heavy machine gun was mounted ("WIMICs"). That vehicle had no role in the subsequent accident.
10. All of the gunners were concentrating upon a target ahead of them. The task allocated was to set up heavy fire upon the target following which a further unit should approach the target on foot from the right. Staff Sergeant Price was supervising the firing exercise which involved his concentration both upon the manner of the firing and the timing of entry of the unit of soldiers from his right. The GPMG operated by Fusiliers Davenport and Nelson suffered a stoppage. They attempted to clear the stoppage by raising the top cover and removing the ammunition belt. This failed to remove the stoppage. For that reason it became what is known in the service as a "hard extraction stoppage" or, in common parlance, "a hard cock". The effect of a hard cock was to prevent the cocking of the weapon so that the firing pin could not be drawn back fully in order to fire further rounds. One of the consequences of an inability to cock the weapon is that it was impossible to see whether a round of ammunition was in position in the barrel ready to be fired. Subsequent experience and examination revealed that one such round had lodged in the barrel but could not be fired.
11. Davenport and Nelson called to Corporal Bell that the weapon had suffered a hard cock. Bell asked if the weapon was safe. The basis of plea submitted by Bell and accepted by the prosecution asserted that he was told by Davenport and Nelson that the weapon was safe. Bell having taken possession of the weapon laid it horizontally on the ground and rested the stock on or against his thigh. He proceeded to unscrew the barrel which had the effect of releasing the firing mechanism, which required only millimetres, causing the bullet to be discharged. The weapon was pointing almost horizontally in the direction of Fusilier Wilkinson who was struck by the bullet and suffered a fatal injury.
12. Corporal Bell was at fault because he failed to follow the recognised drill. His experience told him that if the weapon was hard cocked there could be no guarantee that there was not a bullet in the barrel which was liable to be discharged. Despite the unsafe condition of the weapon he placed it on the ground in a position behind Fusilier Wilkinson so that if the weapon inadvertently discharged it did so in the soldier's direction. At the conclusion of the prosecution case the Judge Advocate ruled that since Fusiliers Davenport and Nelson had warned Corporal Bell that the GPMG was hard cocked they implicitly warned him that it must be unsafe notwithstanding Corporal Bell's assertion that he was told that the weapon was safe. There was no evidence that they were aware the weapon was pointing towards Fusilier Wilkinson and, accordingly, the Judge Advocate ruled that they had no case to answer.
13. The particulars of negligence alleged against Staff Sergeant Price all concerned an allegation of failure properly to supervise the immediate action drills on stoppage of the weapon. It was contended that he failed to determine the nature of the stoppage and, therefore, whether the weapon was safe. He failed to prevent the weapon being moved from a safe position alongside Fusiliers Urwin and Wilkinson to an unsafe position behind them. Finally, it was contended that Staff Sergeant Price failed to alert Corporal Bell to the fact that he was working upon a weapon that was pointing in the direction of another soldier.
14. At the conclusion of the prosecution case, counsel for the appellant, then Mr Andrew Jackson, submitted that he had no case to answer. In a witness statement made during the initial stages of the investigation following Fusilier Wilkinson's death Staff Sergeant Price said that he was aware that the weapon being handled by Corporal Bell was pointing in the direction of other soldiers. On this ground alone, Judge Advocate Elsom ruled, there was a case to be considered by the Board. In his evidence Staff Sergeant Price insisted that he had not said, or he had not intended to say, that he had been aware that the GPMG was pointing in the direction of other soldiers. He had no knowledge of that fact one way or the other. In his summing up the Judge Advocate instructed the Board to concentrate upon particulars 2, 3 and 4. Following their deliberations the Board found the appellant guilty and specified that he was negligent in that he (2) failed to take steps to ascertain whether the GPMG was safe or unsafe and (3) failed to prevent the gun being moved to an unsafe position.

The grounds of appeal

15. Following the appellant's conviction Mr Jackson drafted grounds of appeal in respect of which the single judge granted leave to appeal against conviction. Subsequently Mr Jackson retired from the Bar and Mr Squirrell, counsel newly instructed, recast the grounds of appeal. This court granted leave to Mr Squirrell to advance them. They are (and we paraphrase):

(1) The Judge Advocate in his summing up failed to emphasise that the degree of care exercised by the appellant was to be measured against the standard of a reasonable supervisor with the appellant's skills, training, knowledge and experience and, therefore, with the appellant's weaknesses;

(2) The Judge Advocate wrongly directed the Board that it was immaterial to their judgment of negligence that the appellant was at the time he was deployed to Kenya insufficiently trained and experienced for the task allocated to him;

(3) The Judge Advocate wrongly directed the jury that if they were satisfied upon any one of the particulars of negligence asserted against the appellant, then they could find him guilty without also directing the Board that it was a matter for them whether the particulars they found proved constituted negligence;

(4) The Judge Advocate wrongly directed the Board to the effect that evidence from an expert as to what the appellant should or should not have done in the circumstances, if they accepted it, would alone be sufficient to sustain a finding of negligence;

(5) The Judge Advocate should have withdrawn from the Board particulars (1) – (3) of negligence because he had ruled against the appellant at the close of the prosecution case only upon particular (4).

Ground 1: section 15(2) Armed Forces Act 2006

16. Section 15 of the Armed Forces Act 2006 creates service law offences. Section 15(2) provides:

"(2) A person subject to service law commits an offence if he performs any duty negligently."

17. The issue arose at the conclusion of the case for the prosecution what was the standard of care against which the actions and omissions of the appellant were to be measured. It was submitted by Lieutenant Colonel Cowx for the prosecution that the training and experience of the soldier had no part to play in the identification of the standard of care required since lack of skill and experience was not a defence to the common law tort of negligence or to an offence of manslaughter by gross negligence. In R v Bateman [1927] 19 Cr App R 8 Lord Hewitt CJ said, at page 12:

"The law as laid down in these cases may thus summarised: if a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment …

[T]he law requires a fair and reasonable standard of care and competence. This standard must be reached in all matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he has sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by gross ignorance and unskillfulness. No further observation need be made with regard to cases where the death is alleged to have been caused by indolence or carelessness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to the measured by any lower standard than that which is applied to a qualified man." [Emphasis added]

This passage in Lord Hewitt's judgment was approved by the House of Lords in Adomako [1995] 1 AC 171 at pages 184 and 187 (per Lord Mackay of Clashfern, with whose speech the House agreed). In Bannister [2009] EWCA Crim 1571, [2010] 1 WLR 870, (Thomas LJ, Collins and Owen JJ) the Court of Appeal Criminal Division held that a driver's special skill or lack of special skill did not constitute a circumstance to which the court could have regard when considering whether a driver had fallen well below the standard of care to be expected of a competent and careful driver.

18. It was submitted on behalf of the appellant that a distinction was to be drawn between the standard of care to be achieved by a soldier carrying out his duty and the standard of care to be achieved either by a driver or a person professing professional competence. In the armed services tasks may be required of a soldier which it is beyond his competence to fulfil. It is for this reason, submitted Mr Squirrell, that the Manual of Service Law contains the following guidance at chapter 12:

"Negligence

37. The concept of negligence requires the accused to behave in the circumstances as a reasonable man would be expected to. Therefore, an offence involving negligence can be committed unwittingly, but in circumstances where an accused either acted unreasonably or omitted to act reasonably. Few criminal conduct offences can be committed negligently – see chapter 8 (Criminal Conduct Offences) although a significant number of non-criminal conduct offences can be – see chapter 7 (Non-Criminal Conduct (Disciplinary) Offences). This is because non-criminal conduct offences relate wholly to a service person's professional responsibilities, where certain basic (or reasonable) standards of performance can be expected. Where a service person fails to meet these standards, his failure to do so may be negligent and the charge against him may therefore be proved.

38. For non-criminal offences, in the case of an offence where negligence suffices to find the charge proved, liability will be avoided if the accused behaves as a reasonable person, with the same skills, professional training and knowledge and experience would have done in the circumstances. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable person would exercise in the same situation. This is an objective test for the officer hearing the charge to apply.

39. For a criminal conduct offence where negligence alone would be sufficient to find the charge proved, careless and inconsiderate driving is a good example. Judged against an objective test, failure by an accused to exercise the degree of care and attention that a reasonable, competent and imprudent driver would exercise in the circumstances is sufficient for the offence to be proved. …"

19. It is clear that the Judge Advocate accepted Mr Jackson's submissions since in his directions to the Board, repeated in writing, he said this:

"There is no definition of negligence in the Armed Forces Act 2006 but that does not mean to say that is an end of the matter. The general law, that is as applied by the relevant parts of the Armed Forces Act applying English law to service law, the general law is that a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise and the test is objective, it is set out there, the care, skill or foresight as a reasonable man in the accused situation would exercise … To put it in a service context if you are sure that the accused behaved as no reasonable man with the same skills, professional training, knowledge and experience would have done in the circumstances, then he is guilty, nothing less will do. If you think that he either was or may have been acting as any such reasonable man would have behaved in all the circumstances of this case, then he is not guilty and must be acquitted."

20. In the present case the appellant was instructed to act as a safety supervisor in a live-firing exercise. He did not hold himself out as qualified to perform such a task and, on the contrary, at first expressed his misgivings to his commanding officer. He was being required to carry out a specialist task for which he would only have been qualified had he been trained to perform it. He did not hold himself out as a man with the qualifications to perform the task. That judgement was made by others and he had no realistic choice but to do as instructed. In the somewhat special circumstances of the service context we agree with the Judge Advocate that the standard of care required to avoid the service offence of negligent performance of a duty is to be measured against the standard to be expected of the reasonable serviceman having similar training, knowledge and experience as the accused. The Judge Advocate, following chapter 12 paragraph 38 of the Manual (paragraph 18 above), went further and instructed the Board to endow the reasonable man with the same skill set as that of the appellant. Mr Squirrell averred that the direction given to the Board was in this respect correct. The reverse side of the same coin, he submitted, required the judge also to direct the Board that the reasonable man should be endowed with any flaws or weaknesses in the skills of the appellant for the purpose of judging whether the appellant fell below the standard of the reasonable man. We do not accept this submission. The use of the word "skills" in the Manual may be misleading. As both the Manual and the Judge Advocate made the clear the test is objective. In its context the word "skills" is intended to add nothing to the endowment of the reasonable man with the defendant's training, knowledge and experience. If Mr Squirrell's submission was correct a defendant could never be found negligent since, if the reasonable man was to be endowed with all the defendant's shortcomings, any mistake which the defendant made could not be regarded as negligence. In our judgment, a subjective consideration of the defendant's "skills" or "weaknesses" has no place in the objective judgement whether the defendant reached the appropriate standard of care.
21. In our view, by his reference to the appellant's skills the Judge Advocate was being generous. No such further direction as proposed by Mr Squirrell was required.

Ground 2: competence for appointment

22. During the course of his summing up the Judge Advocate directed the Board as follows:

"You have heard much evidence about his lack of training before departure to Kenya and indeed how the whole of his military career has been spent away from infantry units but at the end of the day you have to consider him as he was on November 26, 2011, and what he had to say about his state of training at the material time and before you. Do not allow any doubts that you may have about the wisdom of assigning a man of his military experience to the task of arranged safety supervisor. You have to look at him, as I say, as he was on November 26 and the training and briefing he had had immediately prior to that day as well as his previous experience or lack of it."

23. Mr Squirrell directed our attention to the evidence of Lieutenant Colonel Burton, a member of the Land Accident Investigation Team, who went with Captain Upton to Kenya. He said that, as a result of this fatal incident, changes had been made to the requirements of drill training in the use of GPMGs. In his opinion, the decision to employ Staff Sergeant Price in the role of range safety supervisor was, having regard to his lack of experience, unsafe. Mr Squirrell submitted that the appellant's lack of experience before his deployment to Kenya was a matter for consideration by the Board in judging the standard of care reasonably to be expected of him.
24. In our judgment, the Judge Advocate was, on the facts of the present case, entitled to direct the Board as he did. The evidence was that the safety supervisors had received training in the task they were due to perform during the period leading to the training exercise on 21 November 2011. In deciding what level of training and experience to attribute to the reasonable man against whom the appellant was to the judged, it followed that the Board should be concentrating upon the appellant's state of knowledge and experience as at the date when he embarked on the role assigned to him. The Judge Advocate did not, contrary to Mr Squirrell's submission, exclude from the Board's consideration the appellant's experience generally and, as we have observed, he summarised for the Board the evidence given by Lieutenant Colonel Burton. What he did, correctly, in our view, was to invite the Board to concentrate upon the accumulated degree of training and experience acquired by the appellant at the relevant, and not an earlier, time.
25. In this regard, the Judge Advocate took pains at pages 170B-172C of the transcript of the proceedings to remind the Board of the appellant's own evidence as to the nature and extent of his training and experience acquired between 10 November and 21 November 2011. The appellant himself observed that he felt competent to carry out the role of safety supervisor having received weapons training and a thorough briefing.

Ground 3: assumption of negligence

26. It is submitted on behalf of the appellant that the Judge Advocate gave to the Board the impression that if they were sure the appellant had not determined the nature of the stoppage and consequent safety of the weapon, or had not prevented the weapon being removed from its firing point or had failed to alert Corporal Bell that he was pointing the weapon in an unsafe direction, the prosecution, without more, would have established negligence.
27. We do not accept this submission. In his summing up at page 165D the Judge Advocate recorded the common ground between the prosecution and defence that the appellant's duty as a safety supervisor included "ensuring the safe handling of a GPMG which was in the possession or control of Corporal Bell, Fusilier Davenport and Fusilier Nelson". Having identified the nature of the duty of care owed by the appellant, the Judge Advocate proceeded to identify the particulars in which the prosecution alleged the appellant had been negligent in failing to ensure the safe handling of the weapon. He did not, however, direct the Board that were the facts established then negligence was by that means proved. He proceeded to explain what would have been a negligent act or omission by reference to the standard of care to be expected of a serviceman in the terms which we have extracted above. It was, we conclude, plain to the Board that not only were they required to reach decisions of fact but also to judge whether they were sure the prosecution had proved that the appellant had failed to meet the required standard of care. It seems to us, furthermore, that this must have been clear to the Board in consequence of the Judge Advocate's summary of the evidence both from the appellant and others as to the reasons why he did not attempt to establish a cause of the stoppage and to prevent the movement of the gun.

Ground 4: expert evidence

28. It is submitted on behalf of the appellant that the Judge Advocate may have given to the Board the impression that merely because an expert witness criticised the acts or omissions of the appellant, in the sense that they generated danger to Fusilier Wilkinson, they could convict upon acceptance of such criticism without reference to the question whether, having regard to the training and experience of the appellant, his acts or omissions fell below a reasonable standard of care.
29. It is conceded that the Judge Advocate provided the Board with the conventional direction that merely because evidence, including opinion evidence, was given by an expert the Board were not bound to accept it and were required to make up their own minds. It is further conceded that the Judge Advocate carefully structured his summary of the evidence so as to bring the Board's attention to bear on the separate issues to which the evidence was directed. For example, the Judge Advocate first reminded the Board of the evidence relevant to the question: "What should Staff Price have done when he knew there was a stoppage with Davenport and Nelson's GPMG?" Secondly, he posed the question: "Should Staff Price have prevented that weapon being moved from its firing point?" and proceeded to remind the Board of the evidence relevant to each question separately. In the course of his summary of the evidence the Judge Advocate was careful to remind the Board of the evidence that was favourable to the appellant's case, namely, that he had his attention on two separate safety issues, the first being the safe operation of the GPMG and the second being the continued firing of other fusiliers while a separate unit was approaching the target from the right. Further, the Judge Advocate reminded the Board of the evidence that was favourable to his case that he had acted reasonably in the circumstances, including the degree of training he had received. It does not seem to us that there was any danger that the Board would consider that a mere statement by an expert as to what was safe and what was not would constitute sufficient grounds for a finding of negligence. The Judge Advocate's directions were, in our view, calculated to require of the Board a judgment not just whether in hindsight what the appellant did was safe or unsafe but whether in all the circumstances, including the limits of his training and experience, he did what a reasonable soldier in his position would have done.

Ground 5: particulars (1) – (3)

30. The Judge Advocate did not at the close of the prosecution case rule upon the question whether there was a case to answer in respect of particulars (1) - (3). He found that it was sufficient that there was plain evidence in support of particular (4) (failure to alert Corporal Bell that the GPMG was pointing in an unsafe direction) which was enough to permit the prosecution case of negligence to be left to the Board. Mr Squirrell submits that the Judge Advocate should have ruled that there was insufficient evidence in support of particulars (1) - (3) to permit those particulars to be left to the Board. We disagree. The central facts of the tragedy that befell Fusilier Wilkinson had been established in the course of the prosecution case. The prosecution had proved that the appellant was appointed as a safety supervisor and had received training in his responsibilities. The Board had heard expert evidence to the effect that the GPMG immediate action drills on stoppage had not been followed. The appellant was a matter of feet away from Davenport and Nelson as they struggled to remove the stoppage. In those circumstances, it seems to us, there was plainly a case for the appellant to answer as to why he did not satisfy himself as to the cause of the stoppage and therefore the safety of the movement of the weapon to Corporal Bell.
31. In the course of the defence case, the appellant gave evidence that was fully summarised to the Board as to his training and experience, his process of thought at the time of the incident, and his belief that he had done what could reasonably be expected of him in the circumstances. Notwithstanding, the Board concluded that the appellant had fallen below the standard reasonably to be expected of him by failing to intervene to prevent the risk of serious injury or death which was realised when the weapon discharged unexpectedly. The appellant had failed, contrary to paragraph 6(s) of the RASP to call an immediate stop in order that the weapon could be examined by an armourer. There were other commonsense precautions that could have been taken, such as ensuring that the weapon never pointed in the direction of another person and was moved forward rather than to the rear of the soldiers. In our judgment, there is no sound basis upon which to doubt the safety of the findings made by the Board. Accordingly, the appeal against conviction is dismissed.

Appeals against sentence

32. Fusilier James Wilkinson was married to his wife Sarah in July 2011 before being posted to Germany. On 4 November 2011 Mrs Wilkinson moved to Germany to live with her husband together with their 2½ year old son. She was at that time 6 months pregnant. James Wilkinson was deployed to Kenya on 7 November. Expressions of the loss and hurt felt by Mrs Wilkinson and the deceased's mother, Janet, were contained in statements which were read to the Court Martial at the sentence hearing. We have given them their full effect.
33. In mitigation Mr Ashley explained to the Board that under the pressure of the live firing exercise Corporal Bell acted in the belief that he was doing the right thing by replicating battlefield conditions. In the heat of the moment he had failed to apply the expertise and experience which should have told him that the gun was unsafe and should not be handled. He had an unblemished military record and had made a mistake upon which he ruminated daily. It had affected his relationship with members of his own family although he had received support from the Army to deal with the consequences of his errors. The Board was informed that notwithstanding the nature of those errors his battalion was clear that they wished him to remain in HM service. The Judge Advocate expressed no adverse comment upon the realism of that request.
34. Mr Jackson reminded the Board of the evidence that it was very unusual that a stoppage had failed to disclose that a round was chambered. So unusual was it that Fusiliers Davenport and Nelson had assured Corporal Bell that the weapon was clear. He relied upon the fact that Staff Sergeant Price had never received specific practical training upon the drill to be followed in the circumstances that arose and that it was understandable, in the view of Captain Reynard, Staff Sergeant Price had deferred to the expertise of Corporal Bell. He submitted that having, regard to the Board's finding upon particular of negligence (4), Staff Sergeant Price bore no responsibility for Corporal Bell's action of attempting to remove the barrel while the gun was in an unsafe position. Captain Stewart Innes was called on behalf of the appellant to confirm that the appellant was thought of very highly in the service and remained, in the Army's view, suitable for promotion to WO2. Captain Innes gave evidence that he had no doubt Staff Sergeant Price was suitable for appointment as a Visiting Warrant Officer at brigade or divisional level. The Judge Advocate asked no questions save to confirm that were the appellant to leave the Army immediately his pension would be equated to that of his current rank. Significantly, Captain Innes had expressed the following opinion:

"I do believe that … he made a mistake on the day but there were mistakes prior to him and he should never have been in that position and I know, as a current member of chain of command, he will never be in that position again. He is not as trained or experienced and we put our soldiers in those situations that we expect them to step up to but we need to provide them with that foundation to step up and achieve it and in my belief the chain of command at that time failed Staff Sergeant Price and as a result failed Fusilier Wilkinson."

35. The Board retired for a period of over two hours to consider sentence. In expressing their reasons for sentence the Judge Advocate said:

"The duty performed negligently with which this court is concerned is the duty to ensure the safety of those involved in a live firing exercise. That is an exercise carrying with it inherent dangers. It is an exercise necessary for the proper training of soldiers who are to be deployed on operations against an enemy. Furthermore, it is an exercise designed to replicate as far as possible conditions on the battlefield but, and it is a very important one, but it is an exercise where safety considerations are and must be paramount and, if necessary, safe lessons must be learned where things go wrong as they did here.

The court identified a failure to follow the recognised drill and handling the gun in unsafe circumstances as Corporate Bell's culpability. He was the Section Commander and an experienced NCO. He was very familiar with the GPMG and it was his actions which brought about the discharge of the fatal round. The court concluded that Staff Sergeant Price knew "quite a lot about this gun" by the stage at which he was exercising his supervisory duties. He knew that if there was a hard cock the presence of a round in the barrel could not be ascertained. The court accepted that he did not necessarily know that the weapon was accordingly automatically unsafe. However it was Staff Sergeant Price's duty to stop the exercise when he knew the weapon was hard cocked."

36. The Court acknowledged that both men had served for long periods with no blemishes on their character. It recognised that they would live with the consequences of their actions. In the court's view, by reason of Staff Sergeant Price's supervisory position, they were equally culpable. The court concluded that a high degree of negligence had been demonstrated. The starting point should in each case be the same, namely 21 months detention. The Judge Advocate made no reference in his sentencing remarks to consideration of issues relevant to the question whether the appellants should be dismissed. Only when the President of the Board was invited to announce sentence were the appellants informed that they would be dismissed.

Dismissal

37. The Commanding Officer of the Second Battalion Royal Regiment of Fusiliers, Lieutenant Colonel Butterwick, wrote in his statement of character:

"I know Corporal Bell to be a man of genuine integrity, moral courage and professionalism. As a soldier he is highly experienced having served operationally in a number of theatres including most recently in Afghanistan. There he was physically courageous, loyal and highly effective and was called upon to operate in often dangerous conditions. In barracks he has set just the sort of example I wish of my JNCOs … Following the tragic death of Fusilier Wilkinson, Corporal Bell has only sought to do the right thing. Devastated by the loss of a colleague he has sought to engage with the subsequent enquiry seeking only that the truth be told. He has also shown true professionalism by continuing with his job as a team commander. I have genuine respect for the way Corporal Bell has conducted himself over this very difficult period and I see him progressing into the Sergeant's mess possibly as a drum major in due course."

Captain A J Purvis wrote:

"Corporal Bell is currently employed as a FSG team commander, a role which sees him command two vehicles and their crews in peace and in war. He is rated as the top team commander in his platoon and has frequently been employed as the platoon second in command on a temporary basis to cover absences; however, he will imminently be employed in this role on a permanent basis. He is an outstanding soldier and is widely considered to be the best machine gunner in 2RRF. Operationally experienced and extremely well thought of by every level of his chain of command, Corporal Bell is an outstanding JNCO."

38. We were informed that it remained the opinion of the appellants' senior officers that they were wanted by the Army for their continuing service. Our attention has been drawn to the decision of this court in Blaymire [2005] EWCA Crim 3019. The appellant, a lance corporal in the Territorial Army, was serving as a driver in Iraq. He took his own and a colleague's rifle at his request to the armoury at troop headquarters where they were to be examined. While there one of the weapons discharged a round of live ammunition killing a sergeant. The appellant was found guilty of negligence by failing to conduct normal safe precautions when taking possession of an SA80 rifle. He should have put the safety catch on, checked inside the chamber, released the working parts, and failed to check that the weapon was not loaded. The Court Martial sentenced him to be dismissed from HM service, reduced him to the ranks and fined him the sum of £2,750. The Judge Advocate General advised that the sentence was manifestly excessive. The soldier should be permitted to remain in the Service. The Reviewing Authority declined to accept that advice and confirmed the original sentence.
39. At paragraph 10 of her judgment on behalf of the court Swift J explained the circumstances of the fatality:

"At the time when Sherratt asked the appellant to take his rifle to the armoury there was no magazine on the weapon. It is accepted by the appellant that he did not check the rifle to ensure there was no round in the chamber. When interviewed after the incident, he said that he had trusted Sherratt and assumed that the rifle was empty. He took the two weapons to troop headquarters, a short coach ride away. When he got into the office he put his own weapon against the wall and carried Sherratt's rifle by the sling with the muzzle pointing downwards. He was standing close to Sergeant Nightingale, talking to him when the latter leaned over and appeared to rattle or flick up the cocking handle of the rifle. The appellant stepped back bringing the muzzle of the rifle up. At that point the appellant's finger was resting on the trigger and must have pulled it, causing the round to be discharged. It is evident from the description of those who were present that the whole episode happened in an instant. No-one was clear precisely how the weapon had come to be discharged."

40. In sentencing the appellant the Assistant Judge Advocate General observed that the appellant's training had been deficient. His commanding officer bore a considerable moral responsibility for what had happened. Nonetheless a rifle was an inherently dangerous weapon and the appellant should have checked that the weapon was clear. At paragraph 14 the court considered the practice of the Court Martial in cases involving the negligent and unintended discharge of a round resulting in death or injury. The court concluded:

"14. … None of the defendants concerned [was] dismissed from the service or sentenced to forfeiture of seniority or reduced to the ranks. In the majority of such cases the penalty imposed was a fine … It is important to note, however, that some of those cases were of a different nature and did not involve death as a result of the unintended discharge. In the circumstances the court accepted the submissions made on behalf of the appellant that dismissal from the service was an excessive sentence. Otherwise the orders of the Court Martial were retained."

41. We have been referred to the Guidance on Sentencing in the Court Martial (Version 4 – October 2013) in which no specific guidance is given upon the principles underlying the imposition of the sanction of dismissal. At paragraph 3.2.2 reference is made to the Services' policy in relation to any particular type of offending that is "incompatible" with further service (the example given is drug abuse), but where the court decides not to dismiss reasons should be given. In paragraph 3.2.1 it is pointed out that dismissal has far reaching consequences. The primary consideration is whether the offence is serious enough that the offender should be dismissed (section 265(1) Armed Forces Act 2006). The guidance draws attention to the observations of Lord Judge CJ in Dowding [2010] EWCA Crim 739 at paragraph 13:

"The question whether the criminal activities of a member of the military requires a dismissal from the service is pre-eminently, although no exclusively, decision for the Court Martial. For this purpose, for the assessment of the impact of the applicant's convictions on his ability to continue to serve in the relevant force, the Court Martial must be regarded as an expert tribunal, entitled to the same level of respect to which any tribunal is entitled when an appeal court is considering its decision."

42. We have given anxious consideration to the sentences imposed in the present case. Neither man was charged with manslaughter. Each of them was taking part in a live firing exercise in which a number of different considerations were bound to occupy them. In the case of Corporal Bell, the local expert in the GPMG, he accepted that he was concentrating upon the effectiveness of the exercise. He allowed himself to be distracted by his attempt to solve the immediate problem of a stoppage. He neglected to recall that the GPMG once hard cocked was unsafe. He accepted what he believed to be an assurance that the gun was clear when his experience should have told him that it may not be and was, for that reason, unsafe. Staff Sergeant Price, it was accepted, may never have understood the full significance of the words "hard-cocked"; that is the gun was for that reason alone unsafe and unsuitable to be moved. His failure was in neglecting to act according to the standing instruction that a hard-cocked weapon should not be moved while the armourer was called. It seems to this court that the negligence of which these appellants were guilty was not the reckless performance of a routine duty but a failure to respond adequately to the unusual demands of a live firing exercise which generated its own peculiar stresses and pressures. The consequence of their negligence was the tragic death of a fellow soldier and we concur with the view of the Court Martial that these men will not forget their responsibility for it.
43. We are acutely conscious of Lord Judge's observations upon the expertise of the Court Martial. However, in the absence of any explanation from the Court Martial either in argument or in sentencing remarks as to why it was believed the nature of the appellant's negligence was incompatible with further service, we are required to exercise our own judgment. As we have observed, this court has said on a previous occasion that carelessness with weapons does not automatically render the offence incompatible with further service. We have no doubt that future risk is one of the considerations which a Court Martial will have well in mind. A senior officer made it clear in the case of Staff Sergeant Price that he would never again be put in a position in which such a tragedy might re-occur. He had served without blemish in the Army for many years in an administrative capacity and had been recommended for promotion. Corporal Bell had impressed his senior officers by his acknowledgement of guilt, and by his mature and measured response to his predicament while in service awaiting sentence. He had remained a well respected member of the 2^nd Battalion and the Army was anxious to retain him. This was not the view of a junior officer only but of the Commanding Officer of his Battalion. It did not follow, in our opinion, that these men had to be dismissed from HM service. Future risk arising from their continued service we assess as low. The nature of the service offence committed was not in our judgment, of itself, so serious that dismissal should inevitably follow. However, both men were in positions of responsibility and it is their failure while in those positions to reach the standard of care required of them that, in our view, affects their suitability for future employment. We conclude that the requirements of service life would have been sufficiently met by a reduction to the ranks of both men.

Service detention

44. We turn to the sentence of detention. The Court Martial concluded that such was the degree of negligence that the seriousness of the offence lay near to the top of the permissible range for sentencing (2 years). While we accept that the consequence of the appellants' negligence was both extremely serious and tragic and, for that reason, merited a sentence of immediate detention, we do not concur in the view that these offences could be regarded as at or near the most serious of their kind. In our judgment, theirs was not a reckless disregard for safety but a failure under pressure of circumstances to recognise a danger which, in other circumstances, would have been clear to them. A sufficient sentence for the appellant Price would have been 15 months detention. We do not agree, with respect to the Board, that there was an equality of responsibility between Corporal Bell and Staff Sergeant Price. It was undoubtedly true that Price was a safety supervisor whose order would have outranked all others. On the other hand, the Board heard evidence that in the task allocated to him he was inexperienced and his commanding officer had in evidence expressed sympathy for Price's instantaneous decision, in the heat of the moment, to defer to Bell as the "expert". In our judgment an appropriate starting point in Corporal Bell's case would have been 18 months detention against which he was entitled to full credit for his plea.
45. Accordingly, we allow both appeals against sentence. In the case of the appellant Price we shall quash the sentence of 21 months detention and substitute for it a term of 15 months detention. In the case of the appellant Bell we shall quash the sentence of 14 months detention and substitute a period of 12 months detention. In both cases we quash the sentence of dismissal from HM service and substitute an order that the appellant be reduced to the rank of private soldier. To that extent the appeal is allowed.